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Full text of "North Carolina Register v.7 no. 11 (9/1/1992)"

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The 
NORTH CAROLINA 

REGISTER 



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A 



31 



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IN THIS ISSUE 

EXECUTIVE ORDERS 

IN ADDITION 

Final Decision Letters 

PROPOSED RULES 
Architecture 
Education 

Environment, Health, and Natural Resources 
Human Resources 
Insurance 
Justice 

State Personnel 
Transportation 

RRC OBJECTIONS 

RULES INVALIDATED BY JUDICIAL DECISION 

CONTESTED CASE DECISIONS 

ISSUE DATE: September 1. 1992 

Volume 7 • Issue II • Pages 1087-1154 



INFORMATION AROnX THE NORTH CAROLINA REGISTER AND AnMINTSTRATTVF. TQpp 



NORTH CAROLINA REGISTER 



TEMPORARY RULES 



The North Carolina Register is published twice a month and 
contains information relating to agency, executive, legislative and 
judicial actions required by or affecting Chapter 150B of the 
General Statutes. All proposed administrative rules and notices of 
public hearings filed under G.S. 150B-21.2 must be published in 
the Register. The Register will typically comprise approximately 
fifty pages per issue of legal text. 

State law requires that a copy of each issue be provided free of 
charge to each county in the state and to various state officials and 
institutions. 

The North Carolina Register is available by yearly subscription 
at a cost of one hundred and five dollars (S105.00) for 24 issues. 
Individual issues may be purchased for eight dollars (S8.00). 

Requests for subscription to the North Carolina Register should 
be directed to the Office of Administrative Hearings, 
P. 0. Drawer 27447, Raleigh, N. C. 27611-7447. 



Under certain emergency conditions, agencies may issue 
temporary rules. Within 24 hours of submission to OAH, the 
Codifier of Rules must review the agency's written statement of 
findings of need for the temporary rule pursuant to the provisions in 
G.S. 150B-21.1. If the Codifier determines that the findings meet 
the criteria in G.S. 150B-21.1, the rule is entered into the NCAC. If 
the Codifier determines that the fmdings do not meet the criteria, 
the rule is returned to the agency. The agency may supplement its 
findings and resubmit the temporary rule for an additional review 
or the agency may respond that it will remain with its initial 
position. The Codifier, thereafter, will enter the rule into the 
NCAC. A temporary rule becomes effective either when the 
Codifier of Rules enters the rule in the Code or on the sixth 
business day after the agency resubmits the rule without change. 
The temporary rule is in effect for the period specified in the rule or 
180 days, whichever is less. An agency adopting a temporary rule 
must begin rule-making procedures on the permanent rule at the 
same time the temporary rule is filed with the Codifier. 



ADOPTION AMENDMENT, AND REPEAL OF 
RULES 



NORTH CAROLINA ADMINISTRATIVE CODE 



The following is a generalized statement of the procedures to be 
followed for an agency to adopt, amend, or repeal a rule. For the 
specific statutory authority, please consult Article 2A of Chapter 
150B of the General Statutes. 

Any agency intending to adopt, amend, or repeal a rule must 
first publish notice of the proposed action in the North Carolina 
Register. The notice must include the time and place of the public 
hearing (or instructions on how a member of the public may request 
a hearing); a statement of procedure for public comments; the text 
of the proposed rule or the statement of subject matter; the reason 
for the proposed action; a reference to the statutory authority for the 
action and the proposed effective date. 

Unless a specific statute provides otherwise, at least 15 days 
must elapse following publication of the notice in the North 
Carolina Register before the agency may conduct the public 
hearing and at least 30 days must elapse before the agency can take 
action on the proposed rule. An agency may not adopt a rule that 
differs substantially from the proposed form published as part of 
the public notice, until the adopted version has been published in 
the North Carolina Register for an additional 30 day comment 
period. 

When final action is taken, the promulgating agency must file 
the rule with the Rules Review Commission (RRC). After approval 
by RRC, the adopted rule is filed with the Office of Administrative 
Hearings (OAH). 

A rule or amended rule generally becomes effective 5 business 
days after the rule is filed with the Office of Administrative 
Hearings for publication in the North Carolina Administrative Code 
(NCAC). 

Proposed action on rules may be withdrawn by the promulgating 
agency at any time before final action is taken by the agency or 
before filing with OAH for publication in the NCAC. 



The North Carolina Administrative Code (NCAC) is a 
compilation and index of the administrative rules of 25 state 
agencies and 38 occupational licensing boards. The NCAC 
comprises approximately 15,000 letter size, single spaced pages of 
material of which approximately 35% of is changed annually. 
Compilation and publication of the NCAC is mandated by G.S. 
150B-21.18. 

The Code is divided into Titles and Chapters. Each state agency 
is assigned a separate title which is further broken down by 
chapters. Title 21 is designated for occupational licensing boards. 

The NCAC is available in two formats. 

(1) Single pages may be obtained at a minimum cost of 
two dollars and 50 cents (S2.50) for 10 pages or less, 
plus fifteen cents (SO. 15) per each additional page. 

(2) The full publication consists of 53 volumes, totaling in 
excess of 15,000 pages. It is supplemented monthly 
with replacement pages. A one year subscription to the 
full publication including supplements can be 
purchased for seven hundred and fifty dollars 
(S750.00). Individual volumes may also be purchased 
with supplement service. Renewal subscriptions for 
supplements to the initial publication are available. 

Requests for pages of rules or volumes of the NCAC should be 
directed to the Office of Administrative Hearings. 



CITATION TO THE NORTH CAROLINA 
REGISTER 

The North Carolina Register is cited by volume, issue, page 
number and date. 1:1 NCR 101-201, April 1, 1986 refers to 

Volume 1, Issue 1, pages 101 through 201 of the North Carolina 
Register issued on April 1, 1986. 



FOR INFORMATION CONTACT: Office of 
Administrative Hearings, ATTN: Rules Division, P.O. 
Drawer 27447, Raleigh. North Carolina 27611-7447, (919) 
733-2678. 



NORTH 
CAROLINA 
REGISTER 




Office of Administrative Hearings 

P. O. Drawer 27447 

Raleigh, North Carolina 27611-7447 

(919) 733-2678 



Julian Mann III, 

Director 
James R. Scarcella Sr., 

Deputy Director 
Molly Masich, 

Director of APA Services 



Staff: 

Ruby Creech, 

Publications Coordinator 
Teresa Kilpatrick, 

Editorial Assistant 
Jean Shirley, 

Editorial Assistant 



ISSUE CONTENTS 



I. EXECUTIVE ORDER 

Executive Order 172 1087 

Executive Order 173 1088 

Executive Order 174 1088 

II. IN ADDITION 

Final Decision Letters 1090 

ni. PROPOSED RULES 
Education 

Departmental Rules 1 108 

Elementary & Secondary 

Education 1108 

Environment, Health, and 

Natural Resources 

Coastal Management 1098 

Human Resources 

Mental Health, 

Developmental Disabilities 

& Substance Abuse 1092 

Insurance 

Departmental Rules 1095 

Hearings Division 1096 

Justice 

Division of Criminal 

Information 1097 

Licensing Boards 

Architecture 1111 

State Personnel 

State Personnel 1113 

Transportation 

Highways 1110 

IV. RRC OBJECTIONS 1121 

V. RULES INVALIDATED BY 

JUDICIAL DECISION 1124 

VI. CONTESTED CASE DECISIONS 

Index to AU Decisions 1125 

Text of Selected Decisions 

90 EHR0628 1133 

91 OS? 0729 1139 

91 OS? 0804 1144 

VII. CUMULATIVE INDEX 1152 



NORTH CAROLCVJA REGISTER 

Publication Schedule 

(August 1992 - December 1993) 







I^st Day 


F^rliest 


F^rliest 










for Elec- 


Date for 


Date for 


I jist Day 


*Earliest 


Issue 


I^st Day 


tronic 


Public 


Adoption 


to Submit 


Effective 


Date 


for Filing 


Filing 


Hearing 


by Agency 


toRRC 


Date 


>(<>|<>|<>t<><<>|<H< 


******* 


******* 


******* 


******* 


******* 


******* 


08/03/92 


07/13/92 


07/20/92 


08/18/92 


09/02/92 


09/20/92 


11/02/92 


08/14/92 


07/24/92 


07/31/92 


08/29/92 


09/13/92 


09/20/92 


11/02/92 


09/01/92 


08/11/92 


08/18/92 


09/16/92 


10/01/92 


10/20/92 


12/01/92 


09/15/92 


08/25/92 


09/01/92 


09/30/92 


10/15/92 


10/20/92 


12/01/92 


10/01/92 


09/10/92 


09/17/92 


10/16/92 


10/31/92 


11/20/92 


01/04/93 


10/15/92 


09/24/92 


10/01/92 


10/30/92 


11/14/92 


11/20/92 


01/04/93 


11/02/92 


10/12/92 


10/19/92 


11/17/92 


12/02/92 


12/20/92 


02/01/93 


11/16/92 


10/23/92 


10/30/92 


12/01/92 


12/16/92 


12/20/92 


02/01/93 


12/01/92 


11/06/92 


11/13/92 


12/16/92 


12/31/92 


01/20/93 


03/01/93 


12/15/92 


11/24/92 


12/01/92 


12/30/92 


01/14/93 


01/20/93 


03/01/93 


01/04/93 


12/09/92 


12/16/92 


01/19/93 


02/03/93 


02/20/93 


04/01/93 


01/15/93 


12/22/92 


12/31/92 


01/30/93 


02/14/93 


02/20/93 


04/01/93 


02/01/93 


01/08/93 


01/15/93 


02/16/93 


03/03/93 


03/20/93 


05/03/93 


02/15/93 


01/25/93 


02/01/93 


03/02/93 


03/17/93 


03/20/93 


05/03/93 


03/01/93 


02/08/93 


02/15/93 


03/16/93 


03/31/93 


04/20/93 


06/01/93 


03/15/93 


02/22/93 


03/01/93 


03/30/93 


04/14/93 


04/20/93 


06/01/93 


04/01/93 


03/11/93 


03/18/93 


04/16/93 


05/01/93 


05/20/93 


07/01/93 


04/15/93 


03/24/93 


03/31/93 


04/30/93 


05/15/93 


05/20/93 


07/01/93 


05/03/93 


04/12/93 


04/19/93 


05/18/93 


06/02/93 


06/20/93 


08/02/93 


05/14/93 


04/23/93 


04/30/93 


05/29/93 


06/13/93 


06/20/93 


08/02/93 


06/01/93 


05/10/93 


05/17/93 


06/16/93 


07/01/93 


07/20/93 


09/01/93 


06/15/93 


05/24/93 


06/01/93 


06/30/93 


07/15/93 


07/20/93 


09/01/03 


07/01/93 


06/10/93 


06/17/93 


07/16/93 


07/31/93 


08/20/93 


10/01/93 


07/15/93 


06/23/93 


06/30/93 


07/30/93 


08/14/93 


08/20/93 


10/01/93 


08/02/93 


07/12/93 


07/19/93 


08/17/93 


09/01/93 


09/20/93 


11/01/93 


08/16/93 


07/26/93 


08/02/93 


08/31/93 


09/15/93 


09/20/93 


11/01/93 


09/01/93 


08/11/93 


08/18/93 


09/16/93 


10/01/93 


10/20/93 


12/01/93 


09/15/93 


08/24/93 


08/31/93 


09/30/93 


10/15/93 


10/20/93 


12/01/93 


10/01/93 


09/10/93 


09/17/93 


10/16/93 


10/31/93 


11/20/93 


01/04/94 


10/15/93 


09/24/93 


10/01/93 


10/30/93 


11/14/93 


11/20/93 


01/04/94 


11/01/93 


10/11/93 


10/18/93 


11/16/93 


12/01/93 


12/20/93 


02/01/94 


11/15/93 


10/22/93 


10/29/93 


11/30/93 


12/15/93 


12/20/93 


02/01/94 


12/01/93 


11/05/93 


11/15/93 


12/16/93 


12/31/93 


01/20/94 


03/01/94 


12/15/93 


11/24/93 


12/01/93 


12/30/93 


01/14/94 


01/20/94 


03/01/94 



* The "Earliest Effective Date " is computed assuming that the agency 
follows the publication schedule above, that the Rules Review Commission approves 
the rule at the next calendar month meeting after submission, and that RRC delivers 
the rule to the Codifier of Rules five (5) business days before the 1st business day of 
the next calendar month. 



EXECUTIVE ORDERS 



EXECUTIVE ORDER NUMBER 172 

INCREASED RECYCLED PRODUCT 

PROCUREMENT AND EXPANDED 

SOLID WASTE REDUCTION ACTIVITY 

BY STATE AGENCIES 

By the authority vested in me by the Constitution 
and laws of North Carolina, IT IS ORDERED: 

Pursuant to my constitutional obligation to see 
that the laws are faithfully executed and in accor- 
dance with the requirements of N.C.G.S. 130A- 
309.14, I direct the Department of Administration 
to promulgate rules and regulations that satisfy the 
requirements and policies of N.C.G.S. 130A- 
309. 14 and this Executive Order. All departments 
are invited to comment fully on the requirements 
of this Order as part of the rule making process. 

Section I. PURPOSE 

That all state departments shall maximize oppor- 
tunities to reduce the amount of solid waste they 
generate, to recycle material recoverable from 
solid waste originating at their facilities, and to 
maximize procurement of recycled products. 

Section 2. APPLICABILITY 

For the purposes of the administrative rules and 
regulations, "state departments" shall include state 
government departments, the General Assembly, 
the General Court of Justice, and the University of 
North Carolina pursuant to the requirements of 
N.C.G.S. 130A-309.14. 

Section 3. REQUIREMENTS 

(a) Oversight 

Each department head shall designate 
an individual or group of individuals to 
see that the requirements of the admin- 
istrative rules and regulations are ful- 
filled. 

(b) Disposal 

(1) All state departments shall ensure that 
employees have access to containers for 
recycling office paper and aluminum 
cans. 

(2) All state employees are required to use 
the recycling containers for identified 
recyclable materials generated in the 
course of department operations. It shall 
be the duty of each state department to 
educate its employees about department 
recycling/waste reduction goals and 



procedures cind to ensure participation, 
(c) Reporting 

(1) On at least an annual basis, beginning 
October 1, 1993, each state department 
shall report to the Office of Waste Re- 
duction in the Department of Environ- 
ment, Health and Natural Resources the 
amounts and types of materials recycled 
by the department during the course of 
department operations. The report shall 
also document activities or programs 
implemented to reduce the amount of 
waste generated by the department. 

(2) The Office of Waste Reduction shall 
compile this information and provide an 
annual update to the Governor on the 
status of recycling and waste reduction 
by state government. 

Section 4. PURCHASE AND USE 

OF RECYCLED PRODUCTS 
BY STATE AGENCIES 

To set an example for local government and the 
private sector, and to support recycling efforts 
mandated by N.C.G.S. 130A-309.09B, all state 
departments shall encourage the use of recycled 
products. 

(a) Goals 

It shall be the goal of state govern- 
ment to increase its purchase of goods 
and supplies made from recycled mate- 
rials, as compared with the amount 
purchased during fiscal year 1992-93, 
by at least the following percentage of 
goods and supplies made from recycled 
materials: 20% by June 30, 1994; 25% 
by June 30, 1995; 30% by June 30, 
1996; and 40% by June 30, 1998. 

(b) Guidelines 

The Department of Administration and 
the Department of Environment, Health 
and Natural Resources shall develop 
guidelines for minimum content stan- 
dards for recycled products purchased 
by state agencies. 

(c) Purchasing 

(1) In cooperation with the Office of Waste 
Reduction, the Division of Purchase 
and Contract in the Department of 
Administration shall make every effort 
to identify products made from recycled 
materials that meet appropriate stan- 
dards for use by state departments. 

(2) A list of recycled products available on 



7:11 NORTH CAROLINA REGISTER September 1, 1992 



1087 



EXECUTIVE ORDERS 



state contract shall be published on a 
semi-annual basis and distributed to all 
potential purchasers to increase aware- 
ness of opportunities to purchase recy- 
cled products. 

(d) Recycled Paper 

State departments are directed to pur- 
chase and utilize recycled paper for all 
reports, memoranda, and other docu- 
ments unless a written authorization is 
obtained from the agency head or a 
designee. 

(e) Reporting 

Beginning October 1, 1993, each state 
department shall submit an annual 
report to the Office of Waste Reduction 
documenting the amounts and types of 
recycled products purchased during the 
course of the previous fiscal year. The 
Office of Waste Reduction shall prepare 
a summary of recycled product purchas- 
ing by state government departments to 
submit to the Governor annually. 

(f) Department Review 

State departments having delegated 
purchasing authority shall review their 
existing specifications to ensure that 
restrictive language or other barriers to 
purchasing recycled products are re- 
moved, provided staff exists to perform 
this task. 

Section 5. REDUCTION OF WASTE 

(a) Photocopies 

To encourage source reduction of 
waste, all state departments shall re- 
quire two-sided copying on all docu- 
ments whenever feasible. All new 
photocopy machines purchased shall 
have duplexing capabilities if their 
capacity is rated at sixty thousand (60,- 
000) copies or more per month. Care 
shall be exercised to avoid unnecessary 
printing or photocopying of printed 
materials. 

(b) Miscellaneous 

State departments shall discourage the 
use of disposable products where reus- 
able products are available and econom- 
ically viable for use. Further, state 
departments shall assess their waste 
generation with regard to purchasing 
decisions and make every attempt to 
purchase items only when needed and 
in amounts that are not excessive. 



When purchases are necessary, prefer- 
ence shall be given to durable items, 
items having minimal packaging, and 
items that are readily recyclable when 
discarded. 

Section 6. EFFECT OF OTHER 
EXECUTIVE ORDERS 

Departments shall notify the Office of the Gover- 
nor of all Executive Orders or portions of Execu- 
tive Orders inconsistent with the mandates of this 
Order and the rules and regulations to be promul- 
gated pursuant to the Order so that noncomplying 
Orders may be brought into compliance. 

Section 7. EFFECTIVE DATE 

This Executive Order shall be effective immedi- 
ately. 

Done in Raleigh, North Carolina, this the 24th 
day of July, 1992. 

EXECUTIVE ORDER NUMBER 173 

EXTENDING EXECUTIVE ORDER 106 

WfflCH EXTENDED 

EXECUTIVE ORDER 66 

By the authority vested in me as Governor by the 
Constitution and laws of North Carolina, IT IS 
ORDERED: 

Effective January 29, 1992, Executive Order 
Number 106 extending Executive Order Number 
66 establishing the State Employees Combined 
Campaign, is extended. 

Done in Releigh, this the 24th day of July, 1992. 

EXECUTIVE ORDER NUMBER 174 

AMENDMENT TO EXECUTIVE 

ORDER NUMBER 162 

By the authority vested in me as Governor by the 
Constitution and laws of North Carolina, IT IS 
ORDERED: 

Section 2. MEMBERS OF THE COUNCIL 

The membership of the Council shall include, but 
not be limited to, the following persons or their 
designees: 

(1) State Health Director, who will serve as 
Chairman; 

(2) Director of the Division of Medical 
Assistance, Department of Human 



1088 



7:11 NORTH CAROLINA REGISTER September 1, 1992 



EXECUTIVE ORDERS 



Resources; 

(3) Director of the Office of State Plan- 
ning; 

(4) Commissioner of Insurance; 

(5) State Budget Officer; 

(6) Director of the Office of Rural Health 
and Resources Development, Depart- 
ment of Human Resources; 

(7) Director of the Division of Aging, 
Department of Human Resources; 

(8) Chairperson of the Commission for 
Health Services; 

(9) Director of the Division of Facility 
Services, Department of Human Re- 
sources; 

(10) Director of the Division of Mental 
Health, Developmental Disabilities, and 
Substance Abuse, Department of Hu- 
man Resources; 

(11) Chairperson of the State Health Coordi- 
nating Council; 

(12) President of the Association of Local 
Health Directors; 

(13) President of the North Carolina Hospi- 
tal Association; 

(14) President of the North Carolina Medical 
Society; 

(15) Director of the Duke University Insti- 
tute for Health Policy; 

(16) President of the North Carolina Minori- 
ty Health Center; 

(17) President of Citizens for Business and 
Industry; and 

(18) President of the North Carolina Health 
Care Facilities Association. 



Governor. All vacancies shall be filled by the 
Governor. 

This Executive Order shall become effective 
immediately. 

Done in Raleigh, this the 30th day of July, 1992. 



The membership of the Council shall also include 
one member of the North Carolina House, one 
member of the North Carolina Senate, and two 
representatives of private insurance companies 
doing business within North Carolina. 

The following persons or their designees shall 
serve as ex officio members of the Council: 

(1) Director of the State Center for Health 
and Environmental Statistics; 

(2) Executive Director of the Medical 
Database Commission; and 

(3) Director of the Health Policy Unit of 
the Cecil G. Sheps Center for Health 
Services Research, University of North 
Carolina School of Public Health. 

All members shall serve at the pleasure of the 



7:11 NORTH CAROLINA REGISTER September 1, 1992 



1089 



. ■i.JLM.KjlS 



G.S. 120-30.9H, effective July 16, 1986, requires that all letters and other documents issued by the 
Attorney General of the United States in which a final decision is made concerning a "change affecting 
voting " under Section 5 of the Voting Rights Act of 1965 be published in the North Carolina Register . 



U.S. Department of Justice 

Civil Rights Division 

JRD:LLT:RA:dmb Voting Section 

DJ 166-012-3 P.O. Box 66128 

92-2761 Washington, D.C. 20035-6128 

August 3, 1992 

George A. Weaver, Esq. 

Lee, Reece, & Weaver 

P.O. Box 2047 

Wilson, North Carolina 27894-2047 

Dear Mr. Weaver: 

This refers to the change in location for the board of elections, including the main voter registrar's 
office, and the elimination of certain registration hours for Wilson County, North Carolina, submitted to the 
Attorney General pursuant to Section 5 of the Voting Rights Act of 1965, as amended, 42 U.S.C. 1973c. We 
received your submission on June 5, 1992. 

The Attorney General does not interpose any objection to the specified changes. However, we note 
that Section 5 expressly provides that the failure of the Attorney General to object does not bar subsequent 
litigation to enjoin the enforcement of the changes. See the Procedures for the Administration of Section 5 
(28 C.F.R. 51.41). 

Sincerely, 

John R. Dunn 

Assistant Attorney General 

Civil Right Division 

By: 

Steven H. Rosenbaum 
Chief, Voting Section 



1090 7:11 NORTH CAROLINA REGISTER September I, 1992 



IN ADDITION 



U.S. Department of Justice 

Civil Rights Division 

JRD:LLT:TGL:sab Voting Section 

DJ 166-012-3 P.O. Box 66128 

92-2646 Washington, D.C. 20035-6128 

August 28, 1992 

DeWitt F. McCarley, Esq. 

City Attorney 

P.O. Box 7207 

Greenville, North Carolina 27835-7207 

Dear Mr. McCarley: 

This refers to five annexations {Ordinance Nos. 2424, 2430, 2431, 2447 and 2448 (1992)} and the 
designation of the annexed areas to election District 5 for the City of Greenville in Pitt County, North 
Carolina, submitted to the Attorney General pursuant to Section 5 of the Voting Rights Act of 1965, as 
amended, 42 U.S.C. 1973c. We received your submission on June 1, 1992. 

The Attorney General does not interpose any objection to the specified changes. However, we note 
that Section 5 expressly provides that the failure of the Attorney General to object does not bar subsequent 
litigation to enjoin the enforcement of the changes. See the Procedures for the Administration of Section 5 
(28 C.F.R. 51.41). 

Sincerely, 

John R. Dunn 

Assistant Attorney General 

Civil Right Division 

By: 

Steven H. Rosenbaum 
Chief, Voting Section 



7:11 NORTH CAROLINA REGISTER September 1, 1992 1091 



PROPOSED RULES 



TITLE 10 - DEPARTMENT OF HUMAN 
RESOURCES 



Notice is hereby given in accordance with G.S. 
150B-21.2 that the Director of the Division of 
Mental Health, Developmental Disabilities & 
Substance Abuse Services intends to amend rule 
(s) cited as 10 NCAC 18A .0125-.0128; .0130; 
.0132; .0133; and .0135. 

1 he proposed effective date of this action is 
January 4, 1993. 

1 he public hearing will be conducted at 10:00 
a.m. on September 17, 1992 at the Albemarle 
Building, 325 N. Salisbury Street, 11th Floor 
Conference Room, Raleigh, N. C. 27603. 

MXeason for Proposed Action: The Division 
Director has statutory authority to develop Rules 
for monitoring services provided by area programs 
and their contract agencies. These Rules are 
proposed for amendment to clarify the role of area 
programs and contract agencies in reviewing 
ser\'ices, and to make the process consistent with 
the expectations of the Division. 

(comment Procedures: Any interested person may 
present his comments by oral presentation or by 
submitting a written statement to Charlotte Tucker, 
Division of Mental Health, Developmental 
Disabilities and Substance Abuse Services, 325 N. 
Salisbury St., Raleigh, N.C. 27603. Persons 
wishing to make oral presentations should contact 
Charlotte Tucker at the above address by 
September 16, 1992. Time limits for oral remarks 
may be imposed by the Division Director. Written 
comments must state the rules to which the 
comments are addressed, and be received in this 
office by October 1, 1992. Fiscal information on 
these Rules is available upon request. 

CHAPTER 18 - MENTAL HEALTH: OTHER 
PROGRAMS 

SUBCHAPTER 18A - MONITORING 
PROCEDURES 

SECTION .0100 - REVIEW PROCESS FOR 

AREA PROGRAMS AND THEIR 

CONTRACT AGENCIES 



.0125 DEFINITIONS 

As used in this Section, the following terms have 
the meanings specified: 

(1) "Area Authority" means the same as 
specified in G.S. 122C-3. 

(+2) "Area program" means the l e gally oonoti - 
tut e d agency which provides providing 
mental health, developmental disabilities, 
and substance abuse services, either 
directly or under contract, for the area 
authority in a designated catchment area. 

(33) " Cartifioation Accreditation " means the 
designation given a service by the Divi- 
sion to indicate: 

(a) compliance with all applicable statutoc 
and rul e s General Statu tues and Rules 
of the Commission and the Secretary; 
or 

(b) evidence that action is being taken to 
correct ail an out-of-compliance find 
isgs finding . 

(4) "Certificate" means the document issued 
by the Division for a service to indicate 
accreditation. 

(55) "Commission" has tho oam e m e aning 
means the same as specified in G.S. 
122C-3. 

{4) "D e o e rtifioation" m e ans the loss of o e rtif 

ioation status for a son . 'ice when tho 
Division d e t e rmines that on area program 
or its contract ag e ncy fails to m ee t appli 
cabl e statutoQ or rul e s within designat e d 
tim e fram e s — or wh e n non complianc e 
pres e nts — aa — imm e diat e — thr e at — te — the 
h e alth, welfar e or saf e ty of the individu 
als s e rv e d. — D e certification may result in 
th e d e lay, reduction or denial of stat e and 
federal funds. — Und e r tho provisions of 
Pion ee r and tho Stat e Medicaid Plan, 
paym e nts will not b e mado for servic e s 
which are d e c e rtifi e d. 

(§6) "Division" has the some meaning means 
the same as specified in G.S. 122C-3. 

(67) "Provider" means the person or agency 
responsible for the provision of a service. 

(78) "Service" means the care, treatment, 
rehabilitation or habilitation which is 
provided by an area program. For the 
purpose of this document, the term "ser- 
vice" may refer to one or more sites 
where the service is provided or to a 
System of Services as approved by the 
Commission. 

Statutory Authority G.S. 122C-113; 122C-141(b); 



1092 



7:11 NORTH CAROLINA REGISTER September 1, 1992 



PROPOSED RULES 



122C-1 42(a); 122C-1 91(d). 

.0126 GEIVERAL PROVISIONS 

(a) All area-operated and contracted services of 
an area program shall be reviewed for compliance 
with the applicable g e n e ral statut e s General Stat- 
utes and Rules of the Commission and the Secre- 
tary. The accreditation review shall be conducted 
in accordance with the Rules in this Section. 
Following oortifioation accreditation , e ach a 
service shall continue to be reviewed, at a mini- 
mum, once during every triennial review cycle. 

(h) A service shall: 

(1) be authorized by the Division to receive 
start-up Division funds: and 

(2) following an on-site review, be accred- 
ited by the Division to continue to 
receive Division funds. Each — s e rvic e 
sbaH — bo certifi e d — in order to r e c e iv e 
otato and f e d e ral funds. 

(o) A faoility subject to lioonBuro shall not n e rv e 



cli e nts until properly lioono e d in aooordano e with 
applicabl e statut e s and Rul e s. 



(d) The Rul e s used in any r e vi e w for o e rtifioa 
tion shall bo the applicabl e Rules as codifi e d in 10 



NCAC 1 8 1 through 1 8 Q and oth e r applioablo Rules 
of th e Commission and th e S e cr e tary. 

(ec) The on-site accreditation review and the 
written oortifioation report for a an ar e a op e rat e d 
service are the responsibility of the: th e Division. 
On sit e review and th e written o e rtifioation r e port 
for a contract e d — sorvioe ar e th e r e sponsibility of 
th e ar e a director with participation by th e — Divi 
sion as n e ed e d. 

(1) Division for an area-operated service: 
and 

(2) area director for a contracted service. 
The Division Director's designee shall make the 
determination of responsibility for review of a 
service when there is a question of responsibility. 

(d) A memorandum of agreement shall exist 
between the area program contracting for a service 
and the area program in whose area it is located. 
This agreement shall designate responsibility for 
emergency or crisis intervention services, commit- 
ment evaluation, and any other services requiring 
resources of the respective area programs. 

(fe) R e vi e ws oonduot e d for th e purpos e of 
continuing — o e rtifioation Accreditation shall be 
accomplish e d maintain e d through a participation in 
a triennial survey as described in Rule .0130 of 
this Section. 

(gf) The Division shall be responsible for 
approval and issuance of o e rtifioation the certifi- 
cate for an area-operated s e rvic e s service . 



(bg) The area director and the Division shall be 
responsible for approval and issuance of o e rtifioa 
tien the certificate for a contracted o e rviooo ser- 
vice . 

(ih) The Division shall notify the area director 
in writing when authorization for funds or the 
accreditation of a service an ar e a op e rat e d ser 
vic e 's c e rtification is denied^ or changed or when 
th e s e rvic e is d e c e rtifi e d revocation of accredita- 
tion is initiated . The written notification shall give 
the r e asons reason for such action and the right to 
appeal the decision according to Rule .0135 of this 
Section. The area director shall provide the same 
notification to the contracted provider or agency 
director when such action involves a contract 
contracted service. 

(ji) In addition to the review procedures pre- 
scribed in this Section^ other reviews may be 
conducted as follows: 

(1) The Division Director may, at any 
time, authorize an on-site review of a 
any service. 

(2) An Any area-operated or contracted 
service may, at any — tim e , with the 
approval of the area director, request an 
on-site review from the Division for the 
purpose of consultation and technical 
assistanccr However, with the under- 
standing that Rule .0128 of this Section 
does not apply, th e Division's rosponsi 
bility in r e cognizing complianc e with 
all oth e r Rul e s of this Section remains. 

(3) An area director may request approval 
of a System of Services, in the format 
approved by the Commission. 

Statutory Authority G.S. 122C-113; 122C-141(b); 
122C-1 42(a); 122C-1 91(d). 

.0127 ACCREDITATION 

(a) The area program shall submit an application 
for o e rtifioation for accreditation of a service, as 
specified in this Rule^ on the Division's "Applica- 
tion for C e rtification Accreditation " form. 

(b) The area program shall submit the applica- 
tion to the Division for all n e w a service se rvic es 
at least 30 days prior to: 

(1) provision of service to a client in an 
unc e rtifi e d a non-accredited service; 

(2) change in provider for an existing 
service; or 

(3) change of location if request e d by th e 
Division or addition of sites. The 
Division shall determine if an on-site 
accreditation review is required based 



7:11 NORTH CAROLINA REGISTER September 1, 1992 



1093 



"' — — — 



PROPOSED RULES 



on the information provided on the 
application and current status of the 
accredited service. 

(c) An approv e d " Application for C e rtifioation" 
seP i ' e a as th e notic e of c e rtification. Authorization 
for the service to receive Division funds C e rtifioa 
ties shall be granted upon a determination by the 
Division that sufficient data has been provided by 
the applicant and there is reasonable assumption 
that the applicant will be able to fully perform all 
obligations pursuant to th e c e rtifioation accredita- 
tion . 

(d) If th e o e r^'io e app e als th e d e nial of oertifi 
cation, stat e funds shall not b e availabl e to th e 
Borvio e unl e ss it agr ees to m ee t th e Division 
requir e m e nts p e nding th e outcom e of th e app e al. 

(ed) C e rtifioation Authorization to receive 
Division funds shall not begin prior to the date of 
the area director's signature on the application fef 
certifioation . 

(g) During th e six months following application. 
the appropriat e staff shall provide consultation and 
teohnioal assistanc e to th e s e r i 'io e provid e r in ord e r 
to familiariz e th e provid e r with applicabl e statut e s 
and rul e s. 

(fe) An on-site accreditation review of a service 
which has been initially approv e d, authorized to 
receive Division funds shall be completed within 
six months of the approved effective date ef 
applioation j^ unless waived by the Division Direc- 
tor in accordance with Rule .0135 of this Section. 

(f) The date of accreditation shall be the date of 
the on-site accreditation review. 

Statutory Authority G.S. 122C-113; 122C-141(b); 
122C-142(a); 122C-191(d). 

.0128 OUT-OF-COMPLIANCE FINDING 

(a) When a service is found to be out-of-compli- 
ance with one or more applicable statut e s or rules 
Statutes or Rules , which do not present an immedi- 
ate threat to the health, w e lfar e or saf e ty safety or 
welfare of the an individual individuals served, the 
area program shall show evidence that action i*? 
has been or will be-? taken to correct flU the out-of- 
compliance findings finding. This is accomplished 
through the development of a corrective action 
plan. 

(b) The area director shall submit a corrective 
action plan within 30 days of written notification 
of an out-of-compliance findings finding for review 
and approval by the Division. If not approved, the 
Division returns the plan to the area director for 
further resolution. 

{«) — Wh e n out of oompliano e findings are doou 



mentod, th e Division shall provid e consultation an d 
t e ohnioal assistano e to th e aroa program sep i 'ioo, if 
r e qu e sted. — Th e ar e a director shall bo r e sponoiblo 
for oontmot e d s e P i 'ioes, but may r e quoot asoistanoo 
from th e Division. 

(dc) The time allowed for the corrective action 
to be taken may shall not exceed six months unles s 
except when waived by the Division Director in 
accordance with Rule .0135 of this Section, 
(ed) When an out-of-compliance issues aro issue 
is fully resolved with supporting documentation, a 
letter shall be sent from the Division to the area 
board chairman and the area director , from tho 
Division, stating that aH the issu e s ore issue is 
resolved. 

(fe) If an out-of-compliance issu e s aro 
issue is not fully resolved and it is felt by the 
Division that there is not evidence that acceptable 
action is being taken to correct the out-of-compli- 
ance findings finding , a letter shall be sent from 
the Division to the area board chairman and area 
director , from th e Divi s ion, stating that d e o e rtifioa 
ties revocation of accreditation procedures will be 
initiated. 

Statutory Authority G.S. 122C-112; 122C-141(b); 
122C-1 42(a); 122C-1 91(d). 

.0130 TRIENNIAL ACCREDITATION 
REVIEW 

(a) An area programs program shall maintain 
c e rtification accreditation of its services by partici- 
pation in a the triennial, on-site, c e rtifioation 
accreditation review process as described in this 
Section. 

(b) At least 60 day s, but not mor e than 1 8 
days, prior to the on-site review, the area director 
shall assure that: 

(1) the Inventory of Services, which is 
provided by the Division, is an accurate 
reflection of its current area-operated 
and contracted services; and 

(2) all area-operated and contracted servic- 
es are reviewed and a statement of 
compliance or a corrective action plan 
is submitted to the Division. 

(c) The area director shall be responsible for 
corrective actions which address addresses an out- 
of-compliance findings finding identified during 
the review as described in Rule .0128 of this 
Section. 

Statutory Authority G.S. 122C-U3; 122C-141(b); 
122C-1 42(a); 122C-1 91(d). 



1094 



7:11 NORTH CAROLINA REGISTER September 1, 1992 



PROPOSED RULES 



0132 DEMAL OR REVOCATION OF 
ACCREDITATION 

(a) Dooortifioation The denial or revocation of 
accreditation ef for a service shall be initiated: 

(1) immediat e ly upon confirmation that a 
service subject to licensure is not li- 
censed; 

(3) immediately upon notifioation by th e 

lioonsing ag e noy that th e lic e ns e for a 
sorvioo hao boon revok e d; 

(52) immediately, when there is substantiat- 
ed evidence of a condition oonditiono 
which thr e at e n threatens the health, 
safety or welfare of an individual indi 
vidualo served; 

(43) upon failure to complete corrective 
action in accordance with the approved 
plan; or 

(§4) upon failure to participate in the trien- 
nial survey. 

(b) I f, aftor review of e vid e nc e , the Division 
finds that a service meets one or more of the 
conditions specified in Paragraph (a) of this Rule 
and that the appropriate procedures have been 
followed by the Division, Division funds shall be 
withheld as outlined in accounting Rule 10 NCAC 
14C .1013 until compliance is achieved as deter- 
mined by the Division Director. 



(b) Waiver of any a rule in this Section may be 
granted in accordance with the procedures codified 
in 10 NCAC 14B .0500. The baoia for tho waiver 
decision may inoludo shall be based on , but not be 
limited to , th e following : 

(1) whether the health, safety or welfare of 
the client is threatened; 

(2) the nature and extent of the request; 
and 

(3) the past record of the service provider 
with compliance of rules. 

The decision to deny a waiver request is a final 
agency decision for purposes of initiating a con- 
tested case hearing. 

Statutory Authority G.S. 122C-113; 122C- 
141(b);122C-142(a);122C-191(d). 

TITLE 11 - DEPARTMENT OF 
INSURANCE 

jy/otice is hereby given in accordance with G.S. 
150B-21.2 that the Department of Insurance 
intends to adopt rule cited as 11 NCAC I .0108. 

Ihe proposed effective date of this action is 
December 1, 1992. 



Statutory Authority G.S. 122C-113; 122C-141(b); 
122C-1 42(a); 122C-1 91(d). 

.0133 CHANGES IN STATUS 

A "Change In Status" form, provided by the 
Division, shall be submitted immediately by the 
area director to the Division, when a change 
occurs in information for a service in the Inventory 
of Services, excluding those situations requiring an 
application — far — o e rtifioation "Application for 
Accreditation" , as specified in Rule .0127(b) of 
this Section. 

Statutory Authority G.S. 122C-113; 122C-1 41(b); 
122C-1 42(a); 122C-1 91(d). 

.0135 APPEALS AND WAIVERS 

(a) An area boards board may informally appeal 
to the Division Director regarding o e rtifioation 
accreditation and the withholding of Division funds 
set forth in Rule .0127 of this Section. A formal 
appeal Formal app e als may be requested in 
accordance with procedures specified in account- 
ing fule Rule 10 NCAC 14C .1013 and the rules 
for contested cases as codified in 10 NCAC 14B, 
Section .0300. 



Instructions on How to Demand a Public Hearing 
(must be requested in writing within 15 days of 
notice): A request for a public hearing must be 
made in writing, addressed to Ellen K. Sprenkel, 
N. C. Department of Insurance, P. O. Box 26387, 
Raleigh, N.C. 27611. This request must be re- 
ceived within 15 days of this notice. 

ixeason for Proposed Action: To prohibit service 
of process through electronic media. 

i^onunent Procedures: Written comments may be 
sent to Ellen K. Sprenkel, P. O. Box 26387, Ra- 
leigh, N.C. 27611. Anyone having questions 
should call Bill Hale or Ellen K. Sprenkel at (919) 
733-4529. 

CHAPTER 1 - DEPARTMENTAL RULES 

SECTION .0100 - GENERAL PROVISIONS 

.0108 ELECTRONIC PROCESS 
PROHIBITED 

Service of legal process upon the Commissioner 



7:11 NORTH CAROLINA REGISTER September 1, 1992 



1095 



PROPOSED RULES 



as attorney to receive process under G.S. lA-1. 
Rule 4 or under General Stattite Chapter 58 is not 
valid and will not be accepted if it is made through 
any electronic medium, including facsimile trans- 
mission. Only those methods of service of process 
upon the Commissioner provided for in G.S. lA-1, 
Rule 4 and in General Statute Chapter 58 will be 
recognized by the Commissioner 
or his duly appointed deputy. 

Statutory Authority: G.S. 58-2-40(1); 58-16-30; 
58-16-35. 

J\lotice is hereby given in accordance with G.S. 
150B-21.2 that the Department of Insurance 
intends to repeal rules cited as 11 NCAC 3 
. 0002, . 0005-. 0008. Previous notice was published 
for these rules in the Register, Volume 7, Issue 2, 
pages 124 - 125. 

1 he proposed effective date of this action is 
December 1, 1992. 

(comment Procedures: Written comments may be 
sent by October 1, 1992 to Bill Hale, Hearings 
Division, P. O. Box 26387, Raleigh, NC 27611. 
Anyone having questions should call Bill Hale or 
Ellen Sprenkel at (919) 733-4529. 

CHAPTER 3 - HEARINGS DIVISION 

.0002 PURPOSE OF DIVISION 

Th e L e gal Division oouns e ls, adviooo and r e nders 
l e gal asoiotanoe to th e oommiosion e r and his staff 
in all matt e rs n e o e oaar)' for th e g e n e ral administra 
tion of th e insuronoo laws of this otat e and oth e r 
matt e rs over vvbioh th e oommiosion e r has oup e r^'i 
sor>' and regulator)' jurisdiction. 

Statutory Authority G.S. 58-7.3; 58-9. 

.0005 SERVICE OF LEGAL PROCESS 

North Carolina G e n e ral Statut e S e ction 5 8 153, 
58 153.1, 58 397, 5 8 110. 58 508(1). 58 512(b), 
and 58 615(h)(2) provid e that s e P i 'io e of l e gal 
proc e ss may b e mad e upon insuranc e compani e s, 
insuranc e support organizations, risk r e t e ntion and 
purchasing — groups, — aad — non r e sid e nt — lio e ns ee s 
doing busin e ss in this stat e by s e rving such proo e es 
upon the oommiosion e r or a deput)' duly appointed 



for such purpos e . The oommiooionor wvW appoiat 
a d e puty' or deputi e s within the department t e 
r e c e iv e and perfect all l e gal prooooo in aooordanoe 
with th e provisions of the applicabl e otatutos. 



Statutory Authority 
58-397; 58-440; 
58-615(h)(2). 



G.S. 58-153; 58-153.1; 
58-508(1); 58-512(b); 



.0006 RECORDS OF DIVISION 

H e aring r e cords, transoripta and orders of th e 
commission e r as w e ll as copi e s of dooumonto in 
civil actions in which th e oommioBion e r io a party 
or e on fil e in th e L e gal Division and may bo 
insp e cted in aooordano e with 11 NCAC 1 .0107. 

Statutory Authority G.S. 58-9; 150A-12(f). 

.0007 PURCHASE OF HEARING 
TRANSCRIPTS 

A copy of th e h e aring transcript may bo pur 
ohao e d provid e d a request th e r e for io mado in 
writing with th e h e aring offic e r prior to or at tho 
comm e nc e m e nt of th e h e aring. 

Statutory Authority G. S. 58-9. 3. 

.0008 LEGAL OPINIONS 

M^ e n a p e rson who is r e gulat e d by th e depart 
m e nt r e qu e sts clarification of a statut e or rule 
wh e r e th e p e rson is about to e ngag e in a businoes 
activity that may violat e th e statut e or rul e , tho 
d e partm e nt may honor th e r e qu e st, — subj e ct to 
availabl e resourc e s or in th e discr e tion of the 
d e puty commission e r of th e L e gal Division. 
A r e quest for a l e gal opinion mad e by a p e rson 
involved in a l e gal or factual dispute shall not b e 
honor e d. 

A r e quest for a l e gal opinion on a hypoth e tical fact 
situation shall not b e honor e d. 
Ev e ry r e qu es t for a l e gal opinion as to how to 
apply a statut e or rul e to a fact situation must b e 
mad e in writing. — Th e p e rson making tho request 
should b e advis e d that it may not bo appropriate 
for th e departm e nt to r e nder a l e gal opinion and 
that any legal opinion rend e r e d by tho commio 
sion e r or his couns e l, oth e r than a declaratory 
ruling issu e d und e r G.S. 150B 17, is not binding 
on th e commission e r, and do e s not prevent th e 
commission e r — from — subs e qu e ntly — acting — m — a 
mann e r — inconsistent — with — the — legal — opinion's 
ooDolusion. 



Statutory Authority G.S. 58-7.3; 58-9. 



1096 



7:11 NORTH CAROLINA REGISTER September 1, 1992 



PROPOSED RULES 



TITLE 12 - DEPARTMENT OF JUSTICE 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the Department of Justice/State 
Bureau of Investigation intends to adopt rule cited 
as 12 NCAC 4E .0204 and amend rule cited as 
12 NCAC 4G .0201. 

1 he proposed effective date of this action is 
December 1, 1992. 

1 he public hearing will be conducted at 9:00 am 
on September 16, 1992 at the Division of Criminal 
Information, 407 N. Blount Street, Raleigh, NC 
27601. 

ixeasonfor Proposed Action: 
12 NCAC 4E . 0204 - The purpose of this rule is to 
permit SBI task force supervisors to have tempo- 
rary management control over authorized person- 
nel assigned to the task force from other agencies 
for purposes ofDCI access and certification. 

12 NCAC 4G .0201 - This action is necessary to 
make sure that it is clear that either an agency or 
an individual found to be in violation has a right 
to an appeal. 

(comment Procedures: Comments may be submit- 
ted in writing, or may be presented orally at the 
public hearing. Written comments should be 
submitted to E.K. Best, Division of Criminal 
Information, 407 North Blount Street, Raleigh, NC 
27601. 

CHAPTER 4 - DIVISION OF CRIMINAL 
INFORMATION 

SUBCHAPTER 4E - ORGANIZATIONAL 
RULES AND FUNCTIONS 

SECTION .0200 - REQUIREMENTS FOR 
ACCESS 

.0204 SBI TASK FORCE MANAGEMENT 
CONTROL 

(a) When the SBI Director grants approval for 
the Bureau to participate in, and supervise a joint 
criminal justice agency task force, those authorized 
staff assigned to the task force shall be temporarily 
considered under SBI management control for 
NCIC/DCI access, and certification purposes 



provided the SBI supervisor responsible for the 
task force insures that: 

(1) Each person assigned to the task force 
shall be under the direct, and immediate 
management control of a criminal jus- 
tice agency, or criminal justice board: 

(2) Each person shall be properly identified 
is DCI certification records as to the 
SBI district responsible for him, and the 
local agency having management con- 
trol over him pursuant to Subparagraph 
(1) of this Rule: 

(3) The responsible SBI supervisor shall 
treat all task force staff as SBI employ- 
ees in all matters pertaining to these 
Rules: and 

(4) The responsible SBI supervisor shall 
immediately notify DCI in writing of 
the termination of any task force mem- 
ber upon such member's departure from 
the task force. 

(b) Any in-service certification obtained while a 
member of a task force shall be terminated upon 
notification of such member's departure. 

Statutory Authority G.S. 114-10; 114-10.1. 

SUBCHAPTER 4G - PENALTIES AND 
ADMINISTRATIVE HEARINGS 

SECTION .0200 - APPEALS 

.0201 NOTICE OF VIOLATION 

(a) Upon determination that a violation of these 
procedures has occurred, written notice of the 
violation shall be sent by certified mail, return 
receipt requested to the offending agency or 
employee. The notice shall inform the party of his 
appeal rights as provided in Paragraph (b) of this 
Rule and shall also contain the citation of the 
specific administrative rule alleged to have been 
violated. 

(b) An operator whose oortifioation has boon 
r e vok e d or susp e nd e d , or an agency found to be 
in violation of these Rules may request an informal 
hearing before the Advisory Policy Board or may 
appeal directly to OAH by filing a petition for a 
contested case. A request for an informal hearing 
must be in writing and submitted to the SBI Assis- 
tant Director for DCI within 15 days from the date 
of notification of violation. A petition for a 
contested case must be filed with OAH within 60 
days in accordance with G.S. 150B-23(f). DCI 
shall notiiy the offending agency or employee of 
the results of the informal hearing within two 



7:11 NORTH CAROLINA REGISTER September 1, 1992 



1097 



PROPOSED RULES 



weeks following the hearing and inform the parties 
of their rights of appeal under G.S. 150B-23. 

Statutory Authority G.S. 114-10; 114-10.1; 
150B-3(b); 150B-23(f). 

TITLE 15A - DEPARTME>fT OF 

EIWIRONMENT, HEALTH, AND 

NATURAL RESOURCES 

I\otice is hereby given in accordance with G.S. 
150B-21.2 that the EHNR - Coastal Management 
intends to amend rule(s) cited as 15 A NCAC 7H 
.0208. .0306 & .0309. 

Ike proposed effective date of this action is 
February 1, 1993. 

1 he public hearing will be conducted at 4:00 
p.m. on September 24, 1992 at the Coast Line 

Convention Center, 501 Nutt Street, Wilmington, 
NC. 

MXeason for Proposed Action: 
Rule 15A NCAC 7H .0208 - To establish in Rules 
the definition of what a SAV is and to address 
maintenance dredging in channels going through 
SAV beds. 

Rules 15A NCAC 7H .0306 & .0309 - To clarify 
the intent of the Commission in directing the 
location of structures in Ocean Hazard Areas. 

Lyomment Procedures: All persons interested in 
this matter are invited to attend the public hearing. 
The Coastal Resources Commission will receive 
mailed written comments postmarked no later than 
October 1, 1992. Any person desiring to present 
lengthy comments is requested to submit a written 
statement for inclusion in the record of proceed- 
ings at the public hearing. Additional information 
concerning the hearing or the proposals may be 
obtained by contacting Dedra Blackwell, Division 
of Coastal Management , P. O. Box 27687, Raleigh, 
NC 27611-7687, (919) 733-2293. 

Hiditors Note: Text shown in Italic in Rules 7H 
.0208 and 7H .0306 was adopted by agency on 
July 24, 1992. These changes are pending review 
by the Rules Review Commission for an effective 
date of October 1,1992. 



CHAPTER 7 - COASTAL MANAGEMENT 

SUBCHAPTER 7H - STATE GUTOELINES 

FOR AREAS OF ENNTRONMENTAL 

CONCERN 

SECTION .0200 - THE ESTUARINE 
SYSTEM 

.0208 USE STANDARDS 

(a) General Use Standards 

(1) Uses which are not water dependent 
will not be permitted in coastal wet- 
lands, estuarine waters, and public trust 
areas. Restaurants, residences, apart- 
ments, motels, hotels, trailer parks, 
private roads, factories, and parking 
lots are examples of uses that are not 
water dependent. Uses that are water 
dependent may include: utility ease- 
ments; docks; wharfs; boat ramps; 
dredging; bridges and bridge approach- 
es; revetments, bulkheads; culverts; 
groins; navigational aids; mooring 
pilings; navigational channels; simple 
access chaimels and drainage ditches. 

(2) Before being granted a permit by the 
CRC or local permitting authority, 
there shall be a finding that the appli- 
cant has complied with the following 
standards: 

(A) The location, design, and need for 
development, as well as the construc- 
tion activities involved must be con- 
sistent with the stated management 
objective. 

(B) Before receiving approval for location 
of a use or development within these 
AECs, the permit-letting authority 
shall find that no suitable alternative 
site or location outside of the AEC 
exists for the use or development and, 
further, that the applicant has selected 
a combination of sites and design that 
will have a minimum adverse impact 
upon the productivity and biologic 
integrity of coastal marshland, shell- 
fish beds, subm e rg e d grass b e ds, beds 
of submerged aquatic vegetation, 
spawning and nursery areas, impor- 
tant nesting and wintering sites for 
waterfowl and wildlife, and important 
natural erosion barriers (cypress 
fringes, marshes, clay soils). 

(C) Development shall not violate water 



1098 



7:11 NORTH CAROLINA REGISTER September 1, 1992 



PROPOSED RULES 



and air quality standards. 

(D) Development shall not cause major or 
irreversible damage to valuable docu- 
mented archaeological or historic 
resources. 

(E) Development shall not measurably 
increase siltation. 

(F) Development shall not create stagnant 
water bodies. 

(G) Development shall be timed to have 
minimum adverse significant affect on 
life cycles of estuarine resources. 

(H) Development shall not impede naviga- 
tion or create undue interference with 
access to, or use of, public trust areas 
or estuarine waters. 

{Ij — Development proposed in estuarine 
' t vaters must also be consistent with 
applicable standards for the ocean 
hazard system jiECs set forth in Sec 
tion . 0300 of this Subchapter. 

(3) When the proposed development is in 
conflict with the general or specific use 
standards set forth in this Rule, the 
CRC may approve the development if 
the applicant can demonstrate that the 
activity associated with the proposed 
project will have public benefits as 
identified in the findings and goals of 
the Coastal Area Management Act, that 
the public benefits clearly outweigh the 
long range adverse effects of the pro- 
ject, that there is no reasonable and 
prudent alternate site available for the 
project, and that all reasonable means 
and measures to mitigate adverse im- 
pacts of the project have been incorpo- 
rated into the project design and will be 
implemented at the applicant's expense. 
These measures taken to mitigate or 
minimize adverse impacts may include 
actions that will: 

(A) minimize or avoid adverse impacts by 
limiting the magnitude or degree of 
the action; 

(B) restore the affected environment; or 

(C) compensate for the adverse impacts 
by replacing or providing substitute 
resources. 

(4) Primary nursery areas are those areas 
in the estuarine system where initial 
post larval development of finfish and 
crustaceans takes place. They are usual- 
ly located in the uppermost sections of 
a system where populations are uni- 



formly early juvenile stages. They are 
officially designated and described by 
the N.C. Marine Fisheries Commission 
in 15A NCAC 3B .1405 and by the 
N.C. Wildlife Resources Commission 
in 15A NCAC IOC .0110. 

(5) Outstanding Resource Waters are those 
estuarine waters and public trust areas 
classified by the N.C. Environmental 
Management Commission pursuant to 
Title 15A, Subchapter 23 .0216 of the 
N.C. Administrative Code as Outstand- 
ing Resource Waters (ORW) upon 
finding that such waters are of excep- 
tional state or national recreational or 
ecological significance. In those es- 
tuarine waters and public trust areas 
classified as ORW by the Environmen- 
tal Management Commission (EMC), 
no permit required by the Coastal Area 
Management Act will be approved for 
any project which would be inconsistent 
with applicable use standards adopted 
by the CRC, EMC, or Marine Fisheries 
Commission (MFC) for estuarine wa- 
ters, public trust areas, or coastal wet- 
lands. For development activities not 
covered by specific use standards, no 
permit will be issued if the activity 
would, based on site specific informa- 
tion, materially degrade the water 
quality or outstanding resource values 
unless such degradation is temporary. 

(6) Beds of submerged aquatic vegetation 
(SAV) are those habitats in public trust 
and estuarine waters vegetated with one 
or more species of submergent vegeta- 
tion. These vegetation beds occur in 
both subtidal and intertidal zones and 
may occur in isolated patches or cover 
extensive areas . In either case, the bed 
is defined by the presence of above- 
ground leaves or the below-ground 
rhizomes and propagules. 

(b) Specific Use Standards 
(1) Navigation channels, canals, and boat 
basins must be aligned or located so as 
to avoid primary nursery areas highly 
productive shellfish beds, b e ds of sub 
m e rg e d v e g e tation, beds of submerged 
aquatic vegetation, or significant areas 
of regularly or irregularly flooded 
coastal wetlands. 
(A) Navigation channels and canals can be 
allowed through narrow fringes of 



7:11 NORTH CAROLINA REGISTER September 1, 1992 



1099 



PROPOSED RULES 



regularly and irregularly flooded 
coastal wetlands if the loss of wet- 
lands will have no significant adverse 
impacts on fishery resources, water 
quality or adjacent wetlands, and, if 
there is no reasonable alternative that 
would avoid the wetland losses. 

(B) All spoil material from new construc- 
tion shall be confined landward of 
regularly and irregularly flooded 
coastal wetlands and stabilized to 
prevent entry of sediments into the 
adjacent water bodies or marsh. 

(C) Spoil from maintenance of channels 
and canals through irregularly flooded 
wetlands shall be placed on non-wet- 
land areas, remnant spoil piles, or 
disposed of by an acceptable method 
having no significant, long term wet- 
land impacts. Under no circumstances 
shall spoil be placed on regularly 
flooded wetlands. 

(D) Widths of the canals and channels 
shall be the minimum required to 
meet the applicant's needs and pro- 
vide adequate water circulation. 

(E) Boat basin design shall maximize 
water exchange by having the widest 
possible opening and the shortest 
practical entrance canal. Depths of 
boat basins shall decrease from the 
waterward end inland. 

(F) Any canal or boat basin shall be 
excavated no deeper than the depth of 
the connecting channels. 

(G) Canals for the purpose of multiple 
residential development shall have: 

(i) no septic tanks unless they meet 
the standards set by the Division 
of Environmental Management 
and the Division of Environmental 
Health; 
(ii) no untreated or treated point 

source discharge; 
(iii) storm water routing and retention 
areas such as settling basins and 
grassed swales. 
(H) Construction of finger canal systems 
will not be allowed. Canals shall be 
either straight or meandering with no 
right angle comers. 
(1) Canals shall be designed so as not to 
create an erosion hazard to adjoining 
property. Design may include bulk- 
heading, vegetative stabilization, or 



adequate setbacks based on soil char- 
acteristics . 
(J) Maintenance excavation in canals, 
channels and boat basins within pri- 
mary nursery areas and beds of sub- 
merged aquatic vegetation should be 
avoided. However, when essential to 
maintain a traditional and established 
use, maintenance excavation may be 
approved if the applicant meets all of 
the following criteria as shown by 
clear and convincing evidence accom- 
panying the permit application. This 
Rule does not affect restrictions 
placed on permits issued after March 
1, 1991. 
(i) The applicant can demonstrate and 
document that a water-dependent 
need exists for the excavation; 
and 
(ii) There exists a previously permit- 
ted channel which was constructed 
or maintained under permits 
issued by the State and/or Federal 
government. If a natural channel 
was in use, or if a human-made 
channel was constructed before 
permitting was necessary, there 
must be clear evidence that the 
channel was continuously used for 
a specific purpose; and 
(iii) Excavated material can be re- 
moved and placed in an approved 
disposal area without significantly 
impacting adjacent nursery areas 
and beds of submerged aquatic 
vegetation ; and 
(iv) The original depth and width of a 
human-made or natural channel 
will not be increased to allow a 
new or expanded use of the chan- 
nel. 
(2) Hydraulic Dredging 

(A) The terminal end of the dredge pipe- 
line should be positioned at a distance 
sufficient to preclude erosion of the 
containment dike and a maximum 
distance from spillways to allow 
adequate settlement of suspended 
solids. 

(B) Dredge spoil must be either confined 
on high ground by adequate retaining 
structures or if the material is suit- 
able, deposited on beaches for purpos- 
es of renourishment, with the excep- 



1100 



7:11 NORTH CAROLINA REGISTER September 1, 1992 



PROPOSED RULES 



tion of (G) of this Subsection (b)(2). 

(C) Confinement of excavated materials 
shall be on high ground landward of 
regularly and irregularly flooded 
marshland and with adequate soil 
stabilization measures to prevent entry 
of sediments into the adjacent water 
bodies or marsh. 

(D) Effluent from diked areas receiving 
disposal from hydraulic dredging 
operations must be contained by pipe, 
trough, or similar device to a point 
waterward of emergent vegetation or, 
where local conditions require, below 
mean low water. 

(E) When possible, effluent from diked 
disposal areas shall be returned to the 
area being dredged. 

(F) A water control structure must be 
installed at the intake end of the 
effluent pipe. 

(G) Publicly funded projects will be con- 
sidered by review agencies on a case- 
by-case basis with respect to dredging 
methods and spoil disposal. 

(H) Dredge spoil from closed shellfish 
waters and effluent from diked dispos- 
al areas used when dredging in closed 
shellfish waters shall be returned to 
the closed shellfish waters. 
(3) Drainage Ditches 

(A) Drainage ditches located through any 
marshland shall not exceed six feet 
wide by four feet deep (from ground 
surface) unless the applicant can show 
that larger ditches are necessary for 
adequate drainage. 

(B) Spoil derived from the construction or 
maintenance of drainage ditches 
through regularly flooded marsh must 
be placed landward of these marsh 
areas in a manner that will insure that 
entry of sediment into the water or 
marsh will not occur. Spoil derived 
from the construction or maintenance 
of drainage ditches through irregularly 
flooded marshes shall be placed on 
nonwetlands wherever feasible. Non- 
wetland areas include relic disposal 
sites. 

(C) Excavation of new ditches through 
high ground shall take place landward 
of a temporary earthen plug or other 
methods to minimize siltation to 
adjacent water bodies. 



(D) Drainage ditches shall not have a 
significant adverse effect on primary 
nursery areas, productive shellfish 
beds, subm e rg e d graoa bods, beds of 
submerged aquatic vegetation, or 
other documented important estuarine 
habitat. Particular attention should be 
placed on the effects of freshwater 
inflows, sediment, and nutrient intro- 
duction. Settling basins, water gates, 
retention structures are examples of 
design alternatives that may be used 
to minimize sediment introduction. 

(4) Nonagricultural Drainage 

(A) Drainage ditches must be designed so 
that restrictions in the volume or 
diversions of flow are minimized to 
both surface and ground water. 

(B) Drainage ditches shall provide for the 
passage of migratory organisms by 
allowing free passage of water of 
sufficient depth. 

(C) Drainage ditches shall not create 
stagnant water pools or significant 
changes in the velocity of flow. 

(D) Drainage ditches shall not divert or 
restrict water flow to important wet- 
lands or marine habitats. 

(5) Marinas. Marinas are defined as any 
publicly or privately owned dock, basin 
or wet boat storage facility constructed 
to accommodate more than 10 boats 
and providing any of the following 
services: permanent or transient dock- 
ing spaces, dry storage, fueling facili- 
ties, haulout facilities and repair ser- 
vice. Excluded from this definition are 
boat ramp facilities allowing access 
only, temporary docking and none of 
the preceding services. Expansion of 
existing facilities shall also comply with 
these standards for all development 
other than maintenance and repair 
necessary to maintain previous service 
levels. 

(A) Marinas shall be sited in non-wetland 
areas or in deep waters (areas not 
requiring dredging) and shall not 
disturb valuable shallow water, sub- 
merged aquatic vegetation, and wet- 
land habitats, except for dredging 
necessary for access to high-ground 
sites. The following four alternatives 
for siting marinas are listed in order 
of preference for the least damaging 



7:11 NORTH CAROLINA REGISTER September 1, 1992 



1101 



PROPOSED RULES 



alterative; marina projects shall be 
designed to have the highest of these 
four priorities that is deemed feasible 
by the permit letting agency: 

(i) an upland basin site requiring no 
alteration of wetland or estuarine 
habitat and providing adequate 
flushing by tidal or wind generat- 
ed water circulation; 

(ii) an upland basin site requiring 
dredging for access when the 
necessary dredging and operation 
of the marina will not result in the 
significant degradation of existing 
fishery, shellfish, or wetland 
resources and the basin design 
shall provide adequate flushing by 
tidal or wind generated water 
circulation; 

(iii) an open water site located outside 
a primary nursery area which 
utilizes piers or docks rather than 
channels or canals to reach deeper 
water; and 

(iv) an open water marina requiring 
excavation of no intertidal habitat, 
and no dredging greater than the 
depth of the connecting channel. 

(B) Marinas which require dredging shall 
not be located in primary nursery 
areas nor in areas which require 
dredging through primary nursery 
areas for access. Maintenance dredg- 
ing in primary nursery areas for 
existing marinas will be considered on 
a case-by-case basis. 

(C) To minimize coverage of public trust 
areas by docks and moored vessels, 
dry storage marinas shall be used 
where feasible. 

(D) Marinas to be developed in waters 
subject to public trust rights (other 
than those created by dredging upland 
basins or canals) for the purpose of 
providing docking for residential 
developments shall be allowed no 
more than 27 sq. ft. of public trust 
areas for every one lin. ft. of shore- 
line adjacent to these public trust 
areas for construction of docks and 
mooring facilities. The 27 sq. ft. 
allocation shall not apply to fairway 
areas between parallel piers or any 
portion of the pier used only for 
access from land to the docking spac- 



es. 

(E) To protect water quality of shellfish- 
ing areas, marinas shall not be located 
within areas where shellfish harvest- 
ing for human consumption is a sig- 
nificant existing use or adjacent to 
such areas if shellfish harvest closure 
is anticipated to result from the loca- 
tion of the marina. In compliance with 
Section 101(a)(2) of the Clean Water 
Act and North Carolina Water Quality 
Standards adopted pursuant to that 
section, shellfish harvesting is a sig- 
nificant existing use if it can be es- 
tablished that shellfish have been 
regularly harvested for human con- 
sumption since November 28, 1975 or 
that shellfish apparently are propagat- 
ing and surviving in a biologically 
suitable habitat and are available and 
suitable for harvesting for the purpose 
of human consumption. The Division 
of Marine Fisheries shall be consulted 
regarding the significance of shellfish 
harvest as an existing use and the 
magnitude of the quantities of shell- 
fish which have been harvested or are 
available for harvest in the area where 
harvest will be affected by the devel- 
opment. 

(F) Marinas shall not be located without 
written consent from the controlling 
parties in areas of submerged lands 
which have been leased from the state 
or deeded by the state. 

(G) Marina basins shall be designed to 
promote flushing through the follow- 
ing design criteria: 

(i) the basin and channel depths shall 
gradually increase toward open 
water and shall never be deeper 
than the waters to which they 
connect; and 
(ii) when possible, an opening shall 
be provided at opposite ends of 
the basin to establish flow-through 
circulation. 
(H) Marinas shall be designed to minimize 
adverse effects on navigation and 
public use of public trust areas while 
allowing the applicant adequate access 
to deep waters. 
(I) Marinas shall be located and con- 
structed so as to avoid adverse im- 
pacts on navigation throughout all 



1102 



7:11 NORTH CAROLINA REGISTER September 1, 1992 



PROPOSED RULES 



federally maintained channels and 
their immediate boundaries. This 
includes mooring sites (permanent or 
temporary), speed or traffic reduc- 
tions, or any other device, either 
physical or regulatory, that may cause 
a federally maintained channel to be 
restricted. 

(J) Open water marinas shall not be 
enclosed within breakwaters that 
preclude circulation sufficient to 
maintain water quality. 

(K) Marinas which require dredging shall 
provide acceptable areas to accommo- 
date disposal needs for future mainte- 
nance dredging. Proof of the ability to 
truck the spoil material from the 
marina site to an acceptable disposal 
area will be acceptable. 

(L) Marina design shall comply with all 
applicable requirements for manage- 
ment of stormwater runoff. 

(M) Marinas shall post a notice prohibiting 
the discharge of any waste from boat 
toilets and explaining the availability 
of information on local pump-out 
services. 

(N) Boat maintenance areas must be de- 
signed so that all scraping, sandblast- 
ing, and painting will be done over 
dry land with adequate containment 
devices to prevent entry of waste 
materials into adjacent waters. 

(O) All marinas shall comply with all 
applicable standards for docks and 
piers, bulkheading, dredging and spoil 
disposal. 

(P) All applications for marinas shall be 
reviewed to determine their potential 
impact and compliance with applica- 
ble standards. Such review shall 
consider the cumulative impacts of 
marina development. 

(Q) Replacement of existing marinas to 
maintain previous service levels shall 
be allowed provided that the preced- 
ing rules are complied with to the 
maximum extent possible, with due 
consideration being given to replace- 
ment costs, service needs, etc. 
(6) Docks and Piers 

(A) Docks and piers shall not significantly 
interfere with water flows. 

(B) To preclude the adverse effects of 
shading coastal wetlands vegetation, 



docks and piers built over coastal 
wetlands shall not exceed six feet in 
width. "T"s and platforms associated 
with residential piers must be at the 
waterward end, and must not exceed 
a total area of 500 sq. ft. with no 
more than six feet of the dimension 
perpendicular to the marsh edge 
extending over coastal wetlands. 
Water dependent projects requiring 
piers or wharfs of dimensions greater 
than those stated in this Rule shall be 
considered on a case-by-case basis. 

(C) Piers shall be designed to minimize 
adverse effects on navigation and 
public use of waters while allowing 
the applicant adequate access to deep 
waters by: 

(i) not extending beyond the estab- 
lished pier length along the same 
shoreline for similar use; 

(ii) not extending into the channel 
portion of the water body; and 

(iii) not extending more than one-third 
the width of a natural water body 
or man-made canal or basin. 
Measurements to determine 
widths of the channels, canals or 
basins shall be made from the 
waterward edge of any coastal 
wetland vegetation which borders 
the water body. The one-third 
length limitation will not apply in 
areas where the U.S. Army Corps 
of Engineers, or a local govern- 
ment in consultation with the 
Corps of Engineers, has estab- 
lished an official pier-head line. 

(D) Pier alignments along federally main- 
tained channels must meet Corps of 
Engineers District guidelines. 

(E) Piers shall not interfere with the 
access to any riparian property and 
shall have a minimum setback of 15 
feet between any part of the pier and 
the adjacent property owner's areas of 
riparian access. The line of division 
of areas of riparian access shall be 
established by drawing a line along 
the channel or deep water in front of 
the properties, then drawing a line 
perpendicular to the line of the chan- 
nel so that it intersects with the shore 
at the point the upland property line 
meets the water's edge. The minimum 



7:11 NORTH CAROLINA REGISTER September 1, 1992 



1103 



PROPOSED RULES 



setback provided in the rule may be 
waived by the written agreement of 
the adjacent riparian owner(s) or 
when two adjoining riparian owners 
are co-applicants. Should the adjacent 
property be sold before construction 
of the pier commences, the applicant 
shall obtain a written agreement with 
the new owner waiving the minimum 
setback and submit it to the permitting 
agency prior to initiating any develop- 
ment of the pier. Application of this 
rule may be aided by reference to an 
approved diagram illustrating the rule 
as applied to various shoreline config- 
urations. Copies of the diagram may 
be obtained from the Division of 
Coastal Management. 
(F) Docks and piers shall not significantly 
interfere with shellfish franchises or 
leases. Applicants for authorization to 
construct a dock or pier shall provide 
notice of the permit application or 
exemption request to the owner of any 
part of a shellfish franchise or lease 
over which the proposed dock or pier 
would extend. 
(7) Bulkheads and Shore Stabilization 
Measures 

(A) Bulkhead alignment, for the purpose 
of shoreline stabilization, must ap- 
proximate mean high water or normal 
water level. 

(B) Bulkheads shall be constructed land- 
ward of significant marshland or 
marshgrass fringes. 

(C) Bulkhead fill material shall be ob- 
tained from an approved upland 
source, or if the bulkhead is a part of 
a permitted project involving excava- 
tion from a non-upland source, the 
material so obtained may be contained 
behind the bulkhead. 

(D) Bulkheads or other structures em- 
ployed for shoreline stabilization shall 
be permitted below approximate mean 
high water or normal water level only 
when the following standards are met: 

(i) the property to be bulkheaded has 
an identifiable erosion problem, 
whether it results from natural 
causes or adjacent bulkheads, or it 
has unusual geographic or geolog- 
ic features, e.g. steep grade bank. 



which will cause the applicant 
unreasonable hardship under the 
other provisions of this Regula - 
tion; Rule: 

(ii) the bulkhead alignment extends no 
further below approximate mean 
high water or normal water level 
than necessary to allow recovery 
of the area eroded in the year 
prior to the date of application, to 
align with adjacent bulkheads, or 
to mitigate the unreasonable hard- 
ship resulting from the unusual 
geographic or geologic features; 

(iii) the bulkhead aligiunent will not 
result in significant adverse im- 
pacts to public trust rights or to 
the property of adjacent riparian 
owners; 

(iv) the need for a bulkhead below 
approximate mean high water or 
normal water level is documented 
in the Field Investigation Report 
or other reports prepared by the 
Division of Coastal Management; 
and 

(v) the property to be bulkheaded is 
in a nonoceanfront area. 
(E) Where possible, sloping rip-rap, 
gabions, or vegetation may be used 
rather than vertical seawalls. 
(8) Beach Nourishment 

(A) Beach creation and/ or or maintenance 
may be allowed to enhance water 
related recreational facilities for pub- 
lic, commercial, and private use. 

(B) Beaches can be created and/ or or 
maintained in areas where they have 
historically been found due to natural 
processes. They will not be allowed 
in areas of high erosion rates where 
frequent maintenance will be neces- 
sary. 

(C) Placing unconfined sand material in 
the water and along the shoreline will 
not be allowed as a method of shore- 
line erosion control. 

(D) Material placed in the water and along 
the shoreline shall be clean sand free 
from pollutants and highly erodible 
finger material. Grain size shall be 
equal to or larger than that found na- 
turally at the site. 

(E) Material from dredging projects can 
be used for beach nourishment if: 



1104 



7:11 NORTH CAROLINA REGISTER September 1, 1992 



PROPOSED RULES 



(i) it is first handled in a manner 
consistent with regulations rules 
governing spoil disposal; 

(ii) it is allowed to dry for a suitable 
period; and 

(iii) only that material of acceptable 
grain size is removed from the 
disposal site for placement on the 
beach. Material shall not be 
placed directly on the beach by 
dredge or dragline during mainte- 
nance excavation. 

(F) Beach creation shall not be allowed in 
any primary nursery areas, nor in any 
areas where siltation from the site 
would pose a threat to shellfish beds. 

(G) Material shall not be placed on any 
coastal wetlands or beds of submerged 
aquatic vegetation. 

(H) Material shall not be placed on any 
submerged bottom with significant 
shellfish resources. 

(I) Beach construction shall not create the 
potential for filling adjacent or nearby 
navigation channels, canals, or boat 
basins. 

(J) Beach construction shall not violate 
water quality standards. 

(K) Permit renewal of these projects shall 
require an evaluation of any adverse 
impacts of the original work. 

(L) Permits issued for this development 
shall be limited to authorizing beach 
nourishment only one time during the 
life of the permit. Permits may be 
renewed for maintenance work or re- 
peated need for nourishment. 
(9) Wooden and Riprap Groins 

(A) Groins shall not extend more than 25 
ft. waterward of the mean high water 
or normal water level unless a longer 
structure can be justified by site spe- 
cific conditions, sound engineering 
and design principals. 

(B) Groins shall be set back a minimum 
of 15 ft. from the adjoining property 
lines. This setback may be waived by 
written agreement of the adjacent 
riparian owner(s) or when two adjoin- 
ing riparian owners are co-applicants. 
Should the adjacent property be sold 
before construction of the groin com- 
mences, the applicant shall obtain a 
written agreement with the new owner 
waiving the minimum setback and 



submit it to the permitting agency 
prior to initiating any development of 
the groin. 

(C) Groins shall pose no threat to naviga- 
tion. 

(D) The height of groins shall not exceed 
1 ft. above mean high water or the 
normal water level. 

(E) No more than two structures shall be 
allowed per 100 ft. of shoreline unless 
the applicant can provide evidence 
that more structures are needed for 
shoreline stabilization. 

(F) "L" and "T" sections shall not be 
allowed at the end of groins. 

(G) Riprap material used for groin con- 
struction shall be free from loose dirt 
or any other pollutant in other than 
non-harmful quantities and of a size 
sufficient to prevent its movement 
from the site by wave and current 
action. 

Statutory Authority G.S. 113A-107(b); 113A-108; 
113A-1 13(b); 113A-124. 

SECTION .0300 - OCEAN HAZARD AREAS 

.0306 GENERAL USE STANDARDS 
FOR OCEAN HAZARD AREAS 

(a) In order to protect life and property, all 
development not otherwise specifically exempted 
or allowed by law or elsewhere in these Rules 
shall be located according to whichever of the 
following rules is applicable. 

(1) If neither a primary nor frontal dune 
exists in the AEC on or b e hind land- 
ward of the lot on which the develop- 
ment is proposed, the development shall 
be landward of the erosion setback line. 
The erosion setback line shall be set at 
a distance of 30 times the long-term 
annual erosion rate from the first line of 
stable natural vegetation or measure- 
ment line, where applicable. In areas 
where the rate is less than 2 feet per 
year, the setback line shall be 60 feet 
from the vegetation line or measure- 
ment line, where applicable. 

(2) If a primary dune exists in the AEC on 
or b e hind landward of the lot on which 
the development is proposed, the devel- 
opment shall be landward of the crest 
of the primary dune or the long-term 
erosion setback line, whichever is 



7:11 NORTH CAROLINA REGISTER September 1, 1992 



1105 



PROPOSED RULES 



farthest from the first line of stable 
natural vegetation or measurement line, 
where applicable. For existing lots, 
however, where setting the development 
behind landward of the crest of the 
primary dune would preclude any prac- 
tical use of the lot, development may be 
located seaward of the primary dune. In 
such cases, the development shall be 
located b e hind landward of the long- 
term erosion setback line and shall not 
be located on or in front of a frontal 
dune. The words "existing lots" in this 
Rule shall mean a lot or tract of land 
which, as of June 1, 1979, is specifical- 
ly described in a recorded plat and 
which cannot be enlarged by combining 
the lot or tract of land with a contigu- 
ous lot{s) or tract(s) of land under the 
same ownership. 

(3) If no primary dune exists, but a frontal 
dune does exist in the AEC on or fee- 
hied landward of the lot on which the 
development is proposed, the develop- 
ment shall be set b e hind landward of 
the frontal dune or behind landward of 
the long-term erosion setback line, 
whichever is farthest from the first line 
of stable natural vegetation or measure- 
ment line, where applicable. 

(4) Because large structures located imme- 
diately along the Atlantic Ocean present 
increased risk of loss of life and proper- 
ty, increased potential for eventual loss 
or damage to the public beach area and 
other important natural features along 
the oceanfront, increased potential for 
higher public costs for federal flood 
insurance, erosion control, storm pro- 
tection, disaster relief and provision of 
public ser\'ices such as water and sew- 
er, and increased difficulty and expense 
of relocation in the event of future 
shoreline loss, a greater oceanfront 
setback is required for these structures 
than is the case with smaller structures. 
Therefore, in addition to meeting the 
criteria in this Rule for setback behind 
landward of the primary or frontal dune 
or both the primary and frontal dunes, 
for all multi-family residential struc- 
tures (including motels, hotels, condo- 
miniums and moteliminiums) of more 
than 5,000 square feet total floor area, 
and for any non-residential structure 



with a total area of more than 5,000 
square feet, the erosion setback line 
shall be twice the erosion setback as 
established in .0306(a)(1) of this Rule, 
provided that in no case shall this dis- 
tance be less than 120 feet. In areas 
where the rate is more than 3.5 feet per 
year, this setback line shall be set at a 
distance of 30 times the long-term 
annual erosion rate plus 105 feet. 
(5) Established common-law and statutory 
public rights of access to and use of 
public trust lands and waters in ocean 
hazard areas shall not be eliminated or 
restricted. Development shall not en- 
croach upon public accessways nor 
shall it limit the intended use of the 
accessways. 

(b) In order to avoid weakening the protective 
nature of ocean beaches and primary and frontal 
dunes, no development will be permitted that 
involves the significant removal or relocation of 
primary or frontal dune sand or vegetation there- 
on. Other dunes within the ocean hazard area shall 
not be disturbed unless the development of the 
property is otherwise impracticable, and any 
disturbance of any other dunes shall be allowed 
only to the extent allowed by Rule .0308(b). 

(c) In order to avoid excessive public expendi- 
tures for maintaining public safety, construction or 
placement of growth-inducing public facilities to 
be supported by public funds will be permitted in 
the ocean hazard area only when such facilities: 

(1) clearly exhibit overriding factors of 
national or state interest and public 
benefit, 

(2) will not increase existing hazards or 
damage natural buffers, 

(3) will be reasonably safe from flood and 
erosion related damage, 

(4) will not promote growth and develop- 
ment in ocean hazard areas. 

Such facilities include, but are not limited to, 
sewers, waterlines, roads, and bridges^-; — and 
erosion control structures. 

(d) Development shall not cause major or 
irreversible damage to valuable documented histor- 
ic architectural or archaeological resources docu- 
mented by the Division of Archives and History, 
the National Historical Registry, the local land-use 
plan, or other reliable sources. 

(e) Development shall be consistent with mini- 
mum lot size and set back requirements established 
by local regulations. 

(f) Mobile homes shall not be placed within the 



1106 



7:11 NORTH CAROLINA REGISTER September 1, 1992 



PROPOSED RULES 



high hazard flood area unless they are within 
mobile home parks existing as of June 1, 1979. 

(g) Development shall be consistent with general 
management objective for ocean hazard areas set 
forth in Rule .0303 of this Section. 

(h) Development shall not create undue interfer- 
ence with legal access to, or use of, public re- 
sources nor shall such development increase the 
risk of damage to public trust areas . 

(i) Development proposals shall incorporate all 
reasonable means and methods to avoid or mini- 
mize adverse impacts of the project. These mea- 
sures shall be implemented at the applicant's 
expense and may include actions that will: 

(1) minimize or avoid adverse impacts by 
limiting the magnitude or degree of the 
action, 

(2) restore the affected environment, or 

(3) compensate for the adverse impacts by 
replacing or providing substitute re- 
sources. 

(j) Prior to the issuance of any permit for 
development in the ocean hazard AECs, there shall 
be a written acknowledgement from the applicant 
that the applicant is aware of the risks associated 
with development in this hazardous area and the 
limited suitability of this area for permanent 
structures. By granting permits, the Coastal Re- 
sources Commission does not guarantee the safety 
of the development and assumes no liability for 
future damage to the development. 

(k) All relocation of structures requires permit 
approval. Structures relocated with public funds 
shall comply with the applicable setback line as 
well as other applicable AEC rules. Structures in- 
cluding septic tanks and other essential accessories 
relocated entirely with non-public funds shall be 
relocated the maximum feasible distance landward 
of the present location; septic tanks may not be lo- 
cated seaward of the primary structure. In these 
cases, all other applicable local and state rules 
shall be met. 

(1) Permits shall include the condition that any 
structure shall be relocated or dismantled when it 
becomes imminently threatened by changes in 
shoreline configuration. The structure(s) shall be 
relocated or dismantled within two years of the 
time when it becomes imminently threatened, and 
in any case upon its collapse or subsidence. 
However, if natural shoreline recovery or beach 
renourishment takes place within two years of the 
time the structure becomes imminently threatened, 
so that the structure is no longer imminently 
threatened, then it need not be relocated or dis- 
mantled at that time. This condition shall not 



affect the permit holder's right to seek authoriza- 
tion of temporary protective measures allowed 
under Rule .0308(a)(2) of this Section. 



Statutory Authority G. S. 
113(b)(6); 113A-124. 



113A-107; 113A- 



.0309 USE STANDARDS FOR OCEAN 
HAZARD AREAS: EXCEPTIONS 

(a) The following types of development may be 
permitted seaward of the oceanfront setback re- 
quirements of Rule .0306(a) of the Subchapter if 
all other provisions of this Subchapter and other 
state and local regulations are met: 

(1) campgrounds that do not involve sub- 
stantial permanent structures; 

(2) parking areas with clay, packed sand or 
similar surfaces; 

(3) outdoor tennis courts; 

(4) elevated decks not exceeding a footprint 
of 500 square feet; 

(5) beach accessways consistent with Rule 
.0308(c) of this Subchapter; 

(6) unenclosed, uninhabitable gazebos with 
a footprint of 200 square feet or less; 

(7) uninhabitable, single-story storage sheds 
with a footprint of 200 square feet or 
less; 

(8) temporary amusement stands; and 

(9) swimming pools. 

In all cases, this development shall only be permit- 
ted if it is landward of the vegetation line; involves 
no significant alteration or removal of primary or 
frontal dunes or the dune vegetation; has over- 
walks to protect any existing dunes; is not essential 
to the continued existence or use of an associated 
principal development; is not required to satisfy 
minimum requirements of local zoning, subdivision 
or health regulations; and meets all other non- 
setback requirements of this Subchapter. 

(b) Where strict application of the oceanfront 
setback requirements of Rule .0306(a) of this Sub- 
chapter would preclude placement of permanent 
substantial structures on lots existing as of June 1 , 
1979, single family residential structures may be 
permitted seaward of the applicable setback line in 
ocean erodible areas, but not inlet hazard areas, if 
each of the following conditions are met: 

(1) The development is set back from the 
ocean the maximum feasible distance 
possible on the existing lot and the 
development is designed to minimize 
encroachment into the setback area; 

(2) The development is at least 60 feet 
landward of the vegetation line; 



7:11 NORTH CAROLINA REGISTER September 1, 1992 



1107 



PROPOSED RULES 



(3) The development is not located on or in 
front of a frontal dune, but is entirely 
behind landward of the landward toe of 
the frontal dune; 

(4) The development incorporates each of 
the following design standards, which 
are in addition to those required by 
Rule .0308(d) of this Subchapter. 

(A) All pilings have a tip penetration that 
extends to at least four feet below 
mean sea level; 

(B) The footprint of the structure be no 
more than 1,000 square feet or 10 
percent of the lot size, whichever is 
greater. 

(5) All other provisions of this Subchapter 
and other state and local regulations are 
met. If the development is to be servic- 
ed by an on-site waste disposal system, 
a copy of a valid permit for such a 
system must be submitted as part of the 
CAM A permit application. 

For the purposes of this Rule, an existing lot is a 
lot or tract of land which, as of June 1, 1979, is 
specifically described in a recorded plat and which 
cannot be enlarged by combining the lot or tract of 
land with a contiguous lot(s) or tract(s) of land 
under the same ownership. The footprint is defined 
as the greatest exterior dimensions of the structure, 
including covered stairways, when extended to 
ground level. 

Statutory Authority G.S. 113A-107(a); 113A- 
107(b); 113A-113(b)(6)a.;113A-113(b)(6)b. ;113A- 
113(b)(6)d.; 113A-124. 



TITLE 16 - DEPARTMENT OF PUBLIC 
EDUCATION 

iSotice is hereby given in accordance with G.S. 
150B-21.2 that the State Board of Education 
intends to amend rules cited as 16 NCAC lA 
.0001 and 16 NCAC 6D .0103. 

±he proposed effective date of this action is 
December 1, 1992. 

1 he public hearing will be conducted at 9:30 am 
on September 21 , 1992 at the Education Building, 
3rd floor Conference Room, 116 West Edenton 
Street, Raleigh, NC 27603-1712. 



ixeason for Proposed Action: Amendments are 
designed to provide a high school exit document 
for special education students who have met the 
requirements of their course of study. 

{comment Procedures: Any interested person may 
submit oral comments at the hearing or written 
comments by October 1, 1992. 

CHAPTER 1 - DEPARTMENTAL RULES 

SUBCHAPTER lA - ORGANIZATIONAL 
RULES 

.0001 DEFINrnONS 

As used in this Title: 

(1) "Basic Education Program" (BE?) means 
that comprehensive program developed 
by the SBE and implemented by each 
LEA in accordance with the provisions of 
G.S. 115C-81. 

(2) "Certificate" means 

fa) that document issued by the department 
to professional public school employees 
which indicates that they have met the 
minimum criteria for serving in a pro- 
fessional positiont-aad ^ 

fb) that document issued by LEAs to s tu - 
dents who have not passed the compe - 
tency test but have met all other criteria 
for graduation. 
"Certificate of attendance" means that 



13} 

14} 
15} 

£6} 



m 

18} 



document issued by LEAs to students 
pursuant to 16 NCAC 6D .0103(a'). 
f^ "Department" means the Department 
of Public Education. 
"Graduation certificate" means that docu- 
ment issued by LEAs to students pursuant 
to 16 NCAC 6D .0103(c). 
f4)- "Local Education Agency" (LEA) 
means local board of education. As used 
in 16 NCAC 6H .0005 - .0010, LEA 
includes the Departments of Human 
Resources and Correction. 
{#)- "State Board of Education" (SBE) 
means the head of the Department of 
Public Education. 

(6)- "Superintendent" means the Superin- 
tendent of Public Instruction. 



Authority N. C. Constitution, Article IX, Section 5. 
CHAPTER 6 - ELEMENTARY AND 



1108 



7:11 NORTH CAROLINA REGISTER September 1, 1992 



PROPOSED RULES 



SECONDARY EDUCATION 

SUBCHAPTER 6D - INSTRUCTION 

SECTION ,0100 - CURRICULUM 

.0103 GRADUATION REQUIREMENTS 

(a) In order to graduate and receive a high 
school diploma, public school students must meet 
the requirements of Paragraph (b) of this Rule and 
attain passing scores on competency tests adopted 
by the SBE and administered by the LEA. Stu- 
dents who satisfy all state and local graduation 
requirements but who fail the competency tests 
will receive a certificate of attendance and tran- 
script and may shall be allowed by the LEA to 
participate in graduation exercises. 

(1) LEAs score the competency tests sepa- 
rately according to passing scores or 
criterion levels approved by the SBE. 

(2) LEAs may change the form or content 
of the competency tests where neces- 
sary to allow special education students 
to participate, but these students must 
achieve a level of performance on each 
test equal to the passing scores or crite- 
ria levels. 

(3) Special education students may apply in 
writing to be exempted from taking the 
competency tests. Before it approves 
the request, the LEA must assure that 
the parents, or the child if aged 18 or 
older, understand that each student must 
pass the competency tests to receive a 
high school diploma. 

(4) Any student who has failed to pass the 
competency tests by the end of the last 
school month of the year in which the 
student's class graduates may receive 
additional remedial instruction and 
continue to take the competency tests 
during regularly scheduled testing until 
the student reaches maximum school 
age. 

(b) In addition to the requirements of Paragraph 
(a), students must successfully complete 20 course 
units in grades 9-12 as specified in this Paragraph : 

(1) Effective with the class entering ninth 
grade for the 1992-93 school year, the 
20 course units must include: 

(A) four units in English; 

(B) three units in mathematics, one of 
which must be Algebra I; 

(C) three units in social studies, one of 
which must be in government and 



economics, one in United States histo- 
ry and one in world studies; 

(D) three units in science, one of which 
must be biology and one a physical 
science; 

(E) one unit in physical education and 
health; and 

(F) six units designated by the LEA, 
which may be undesignated electives 
or courses designated from the stan- 
dard course of study. 

(2) LEAs may count successful completion 
of course work in the ninth grade at a 
school system which does not award 
course units in the ninth grade toward 
the requirements of this Rule. 

(3) LEAs may count successful completion 
of course work in grades 9-12 at a 
summer school session toward the 
requirements of this Rule. 

(4) LEAs may count successful completion 
of course work in grades 9-12 at an 
off-campus institution toward the re- 
quirements of this Rule. No high 
school may approve enrollment in 
post-secondary institutions during the 
regular school year in excess of five 
percent of its enrollment in grades 
10-12 except as allowed by the SBE. 
23 NCAC 2C .0301 governs enrollment 
in community college institutions. 

(c) Effective with the class entering ninth grade 
for the 1992-93 school year, special needs students 
as defined by G.S. 115C-109, excluding academi- 
cally gifted, speech-language impaired, orthopedi- 
cally impaired, other health impaired, and preg- 
nant, who do not meet the requirements for a high 
school diploma will receive a graduation certificate 
and shall be allowed to participate in graduation 
exercises if they meet the following criteria: 

(1) successful completion of 20 course 
units by general subject area £4 Eng- 
lish. 3 math. 3 science, 3 social studies, 
i health and physical education, and 6 
local electives) under Paragraph (b) of 
this Rule. These students are not re- 
quired to pass the specially designated 
courses such as Algebra \^ Biology or 
United States history; 

(2) completion of all lEP requirements. 

Statutory Authority G.S. 115C-12(9)c.; 
115C-81(a); 115C-180. 



7:11 NORTH CAROLINA REGISTER September 1, 1992 



1109 



PROPOSED RULES 



TITLE 19A - DEPARTMENT OF 
TRANSPORTATION 

ijotice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Department of 
Transportation intends to amend rule(s) cited as 
19A NCAC 02D .0822 and .0824. 

1 he proposed effective date of this action is 
December 1, 1992. 

Instructions on How to Demand a Public Hearing: 
A demand for a public hearing must be made in 
writing and mailed to Emily Lee, Department of 
Transportation, P.O. Box 25201, Raleigh, NC 
27611. The demand must be received within 15 
days of this Notice. 

MVeason for Proposed Action: The amendment is 
needed to revise the time limit for contractors to 
submit performance and payment bonds after 
contract award. 

(comment Procedures: Any interested person may 
submit written comments on the proposed rule by 
tnailing the comments to Emily Lee, Department of 
Transportation, P.O. Box 25201, Raleigh, NC 
27611 , within 30 days after the proposed rule is 
published or until the date of any public hearing 
held on the proposed rule, whichever is longer. 

CHAPTER 2 - DIVISION OF fflGHWAYS 

SUBCHAPTER 2D - HIGHWAY 
OPERATIONS 

SECTION .0800 - PREQUALIFICATION: 
ADVERTISING 

.0822 CONTRACT BONDS 

The successful bidder, within ten days 14 calen- 
dar days after the notice of award is received by 
him, shall provide the Department with a contract 
payment bond and a contract performance bond 
each in an amount equal to 100 percent of the 
amount of the contract. All bonds shall be in 
conformance with G.S. 44A-33. The corporate 
suret}' furnishing the bonds shall be authorized to 
do business in the State. 

Statutory Authority G.S. 136-18(1). 



.0824 FAILURE TO FURNISH 
CONTRACT BONDS 

The successful bidder's failure to file acceptable 
bonds within +0 days M calendar days after the 
notice of award is received by him wiil shall be 
just cause for the forfeiture of the bid bond or bid 
deposit and rescinding the award of the contract. 
Award may then be made to the next lowest 
responsible bidder or the work may be readverti- 
sed and constructed under contract or otherwise, as 
the Board of Transportation may decide. 

Statutory Authority G.S. 136-18(1). 



1110 



7:11 NORTH CAROLINA REGISTER September 1, 1992 



PROPOSED RULES 



TITLE 21 - OCCUPATIONAL LICENSING BOARD 

Notice is hereby given in accordance with G.S. 150B-21.2 that the North Carolina Board of Architecture 
intends to amend rules cited as 21 NCAC 2 .0108, .0301 -.0302. 

1 he proposed effective date of this action is December 1, 1992. 

Instructions on How to Demand a Public Hearing (must be requested in writing within 15 days of notice): 
Any request for a public hearing on these rules must be submitted, in writing, to Cynthia Skidmore, North 
Carolina Board of Architecture, 501 N. Blount Street, Raleigh, NC 27604, by 4:00 pm on September 16, 
1992. 

Jxeason for Proposed Action: 

21 NCAC 2 .0108 - To remove the requirement which specifies that all fees must be paid by certified check 

or money order. 

21 NCAC 2 .0301 - To require completion of an application form to sit for the Architecture Registration 
Examination, and to establish an application filing deadline for the December examination. 

21 NCAC 2 . 0302 - Clarifies the maximum credit a student may receive for education other than the specified 
degree. 

(comment Procedures: Written comments on these rules must be delivered to the Board office by 4:00 pm on 
October 1, 1992. 

CHAPTER 2 - BOARD OF ARCHITECTURE 

SECTION .0100 - GENERAL PROVISIONS 

.0108 FEES 

Fees required by the Board, are payable in advance by c e rtifi e d oh e ok or mon e y order and are set forth 
below: 

Initial Application 
Individual 

Residents $50.00 

Nonresidents $50.00 

Corporate $75.00 

Examination At Cost (See Rule .0301) 

Re-examination $25.00 

Annual license renewal 

Individual $75.^0 50.00 

Corporate $100.00 

Late renewal Penalty $50.00 

Reciprocal registration $150.00 

Copies of the roster and other publications and services provided by the Board are available at a reasonable 
cost from the Board office. 

Statutory Authority G.S. 83A-4. 



SECTION .0300 - EXAMINATION PROCEDURES 
.0301 APPLICATION FOR EXAMINATION OR REGISTRATION 

7:11 NORTH CAROLINA REGISTER September 1, 1992 nH 



PROPOSED RULES 



(a) All persons desiring to submit applications for written examination must complete a form an application 
and submit the application fee. All new applications and supporting documents for the Architectural 
Registration Examination (ARE) must be on file in the office of the Board not later than March 1st of each 
year for the June examination and October 1st of each year for the December examination in order for the 
applicant's eligibility to be determined and in order that the candidate may receive proper instructions to 
prepare for the examination. Applications and any supporting documents submitted after midnight of March 
1 st or October 1st of each year shall be deemed by the Board to be incomplete and the candidate shall not be 
eligible to sit for the next administration of the examination. If an application is in proper form and the 
applicant is otherwise qualified by statute and the rules of the Board to sit for the examination, notice will be 
mailed to the applicant, with detailed information as to the time, place and other requirements of the 
examination. 

(b) The fees for examination, or parts thereof, will be established by the Board in order that all costs for 
examination materials are recovered. Fees will be published in a separate schedule and will be made available 
to all applicants for examination. A non-refundable application fee as established in Rule .0108 must be 
submitted with each first-time application in addition to the examination fee. 

Statutory Authority G.S. 83A-4; 83A-6; 83A-7. 

.0302 WRITTEN EXAMINATION 

(a) Licensure Examination. All applicants for architectural registration in North Carolina by written 
examination must pass the Architectural Registration Examination (ARE), administered in North Carolina, 
prepared by the National Council of Architectural Registration Boards (NCARB). Provided, applicants who 
have never been registered in any state or territory may transfer credits for portions of the examination 
previously passed in another state if at the time of taking the exam elsewhere they otherwise qualified for 
taking the exam in North Carolina. 

(1) Description. The nature of the examination is to place the candidate in areas relating to actual 
architectural situations whereby his abilities to exercise competent value judgements will be tested 
and evaluated. 

(2) Qualifications. The prequalifications necessary for an applicant's admission to the Architectural 
Registration examination (ARE) are as follows: 

(A) be of good moral character as defined in North Carolina General Statute 83A-1(5); 

(B) be at least 1 8 years of age; 

(C) hold a degree in architecture from a college or university where the degree program has been 
approved by the Board, or professional education equivalents as outlined and defined in the North 
Carolina Board of Architecture's Table of Equivalents for Education and Experience, Appendix 
A. Beginning July 1, 1991, the professional education qualification shall be a NAAB (National 
Architectural Accrediting Board) accredited professional degree in architecture; provided that an 
applicant whose education equivalents otherwise qualified under the Board's rules in effect prior 
to 1989 may apply for admission to the Architectural Registration Examination. However, an 
applicant who does not hold a NAAB accredited professional degree may not accumulate more 
than three and one half years of education credits in the aggregate from all degree programs in 
which he was enrolled. Further provided, the applicant must file with the Board by December 
31, 1991, a notice of intent to sit for the examination on or before June 30, 1995. 

(D) have three years' practical training or experience in the offices of registered architects or its 
equivalent as outlined and defined in the North Carolina Board of Architecture's Table of 
Equivalents for Education and Experience, Appendix A. All applicants who apply for 
architectural registration subsequent to July 1, 1987 shall be required to follow the Intern De- 
velopment Program (IDP) through the National Council of Architectural Registration Boards or 
an equivalent program approved by the North Carolina Board of Architecture in order to satisfy 
the requirements of this Section^ In the case of any applicant certifying to the Board that he or 
she had accrued sufficient training credits under the requirements of the current Appendix A prior 
to July 1, 1987, so that 12 or fewer months of training remained to be acquired, then the current 
Appendix A shall continue in effect for such applicant. 

(b) Retention of Credit. Transfer credits for parts of the examination passed prior to the 1983 Architectural 
Registration Examination (ARE), shall be as established by the Board. Information as to transfer credits will 



1112 7:11 NORTH CAROLINA REGISTER September 1, 1992 



PROPOSED RULES 



be provided, when appropriate, to candidates as an inclusion with the application forms. 

(c) Practical Training. Practical training means practical experience and diversified training as defined in 
the North Carolina Board of Architecture's Table of Equivalents for Education and Experience, Appendix A. 
However, the Board reserves the right to judge each case on its own merits. 

(d) Personal Audience. The candidate may be required to appear personally before the examining board 
or a designated representative of the Board and afford the Board an opportunity to judge his natural 
endowments for the practice of architecture, his ethical standards, and by questions gain further knowledge 
of his fitness for the practice of architecture. The time for this audience will be set by the examining body. 
(e) Grading. The ARE shall be graded in accordance with the methods and procedures recommended by the 
NCARB. 

(1) To achieve a passing grade on the ARE, an applicant must receive a passing grade of 75 in each 
division. Grades from the individual divisions may not be averaged. Applicants will have 
unlimited opportunities to retake divisions which they fail, but all divisions, previously failed, must 
be retaken at one time at a subsequent examination. 

(2) In order to insure fairness in grading and to preserve anonymity until after the examinations have 
been graded, each candidate will receive a number that will be unique for each candidate. This 
number shall be placed by the candidate on all papers and exhibits. 

(f) Time and place. Beginning in 1983, the Board will administer the ARE over a four day period to all 
applicants eligible, in accordance with the requirements of this Rule. The place and exact dates will be 
announced in advance of the examination. 



Statutory Authority G.S. 83A-1; 83A-6; 83A-7. 



TITLE 25 - OFFICE OF STATE 
PERSONNEL 

iSotice is hereby given in accordance with G.S. 
150B-21 .2 that the Office of State Personnel/State 
Personnel Commission intends to adopt rules 
cited as 25 NCAC IL .0107-.0119, and repeal 
rules cited as 25 NCAC IC .0202 and IL .0101- 
.0106. 



x^omment Procedures: Interested persons may 
present statements either orally or in writing at the 
public hearing or in writing prior to the hearing by 
mail addressed to: Barbara A. Coward, Office of 
State Personnel, 116 W. Jones Street, Raleigh, NC 
27603. 

CHAPTER 1 - OFFICE OF STATE 
PERSONNEL 



1 he proposed effective date of this action is 
December 1, 1992. 

1 he public hearing will be conducted at 9:00 am 
on October 6, 1992 at the State Personnel Devel- 
opment Center, 101 W. Peace Street, Raleigh, NC 
27603. 

MXeason for Proposed Action: 
25 NCAC IC .0202 and IL .0101-.0106 - These 
rules are proposed to be repealed in order to 
adopt new rules to conform to current legislation: 
S.L. 1991 c. 919. 

25 NCAC IL .0107:0119 - These rules are pro- 
posed to be adopted to ensure that the administra- 
tion and implementation of all personnel policies, 
practices and programs are fair and equitable. 



SUBCHAPTER IC - PERSONNEL 
ADMINISTRATION 

SECTION .0200 - GENERAL 
EMPLOYMENT POLICIES 

.0202 EQUAL EMPLOYMENT 
OPPORTUNITY 

(a) Sp e cial provioions relativ e to handicap: 

{i) Equal — e mploym e nt — opportunity' — fef 

p e rson s with disabiliti e s inoludoo tho 
moldng of a r e asonabl e aooommodation 
to th e known physical limitations of a 
qualifi e d — handicapped — applicant — er 
e mployee who would b e abl e to p e r 
form th e e ss e ntial duti e s of th e job if 
suoh aooommodation is mad e . This may 
includ e : 
^A) — making faciliti e s used by e mploy ee s 
r e adily aoo e ssibl e to and usabl e by 



7:11 NORTH CAROLINA REGISTER September 1, 1992 



1113 



PROPOSED RULES 



ouoh p e roon; 
{B) — job rootruoturing (r e ossigmng non e ss 
ontial dutioc and/or using part tim e or 
modifi e d work ooh e dul e o); 
{€) — aoquioitioD or modification of e quip 

ment or d e vioes; 
{©) — provision of r e aders or interpr e t e rs; 
and/or other similar actions. 
Ag e ncies ore r e quir e d to molc e such adjustments 
for the Icnown limitations of oth e rv . is e qualifi e d 
hondicappod applicants and omploy e eo, unless it 
can bo d e monstrated that a particular adjustm e nt or 
alteration would impose an undu e hardship on th e 
op e ration of the ag e ncy. 

a; 



O)- 



Whether an accommodation is r e ason 
able must d e p e nd on the facts in each 
cas e . Factors to be consider e d in d e t e r 
mining this include: 



of th e accommo 



{A) — the nature and cost 

dation n e ed e d; 
(B) — the t)'p e of th e agency's op e ration, 

including the composition and 



turo of its work forc e ; and 



struc 



{€) — th e ov e rall siz e of th e ag e ncy or 
particular — program — involv e d, — with 
r e spect — te — number — ei — e mployees, 
number and type of facilities, and size 
of budget, 
(b) Bona Fid e Occupational Qualifications: 

f4^ Ago. sex or physical r e quir e m e nts may 

bo consid e r e d if th e y constitut e a bona 
fid e occupational qualification nooossar)' 
for job — perform a aee — m — tbe — normal 

operations of th e ag e ncy. V i Tieth e r 

such a r e quir e m e nt is a bona fide oocu 
pationol qualification will d e p e nd on th e 
facts in e ach cas e . This e x e mption will 
b e con s trued ver>' narrowly and th e 
agency will hav e th e burd e n of proving 
the e x e mption is justifi e d. 

43) Physical — fitness — r e quirements — based 

upon procmployment physical oxamina 
tions relating to minimum standards for 
e mploym e nt may b e a r e asonabl e e m 
ploym e nt factor, — provid e d that such 
standards ar e reasonably n e oessar>' for 
the sp e cific work to be performed -aad 
ar e uniformly and e qually applied to all 
applicants for the particular job catego 
r)'. regardless of age or sex. 



(^ 



A differentiation bas e d on a physical 
e xamination — may — be — r e cogniz ed — as 
r e asonabl e — m — oertxiin job — situations 
which — n e c e ssitat e — string e nt — physical 
r e quir e ments du e to inh e r e nt occupa 



tional factors such as the safet^ ^ ' of the 
individual employ e es or of other per 
sons in th e ir charge, or those occupa - 
tions which by natur e are particularly 
hazardous. — Job classifioationc which 
r e quire rapid refl e xes or a high degrco 
of speed, coordination, dext e rity' and 
e nduranc e would fall in this category'. 

{4) To e stablish ag e , sex or physical re 

quirements as a bona fide occupational 
qualification, it will b e necessary to 
submit a recommendation to the Offico 
of State Personnel setting forth all facts 
and justification as to why the require - 
ment should be consider e d as an em 
ployment factor in e ach of the classifi 
cations in question. 
{©) — Eff e ctive July 1, 1985, direct app e al to the 
Stat e Personnel Commission (such app e al involv 
ing a contest e d cas e h e aring pursuant to Ch. 150B) 
on th e basis of political affiliation discrimination is 
provid e d only to employees who m ee t the stan 
dard s for continuous s tat e servic e set out in G.S. 
126 5(o)(l), or to employees who sers'ed or wore 
separat e d from positions subject to competitive 



sep i 'io e . 

(d) Sp e cial Provisions Relative to Communicable 
and Inf e ctious Dis e as e s: 



{^ 



P e rsons with communicable or infoc 
tious dis e ase, including Acquired Im 
mun e Defici e ncy Syndrome (MBS), arc 
handicapp e d if the diseas e results in an 
impairment which substantially limits 
on e or more major life activities. — AM 
of th e statutory' provisions relative to 
p e rsons with handicaps ar e applicabl e to 
sons with communicable and infoc 



pee 

tious diseases, including th e r e quir e 
ments for a reasonable accommodation 
to th e Icnown limitations of an oth e r 
wis e qualifi e d applicant or employ e e. 

(3) It is not discriminator^' action to fail to 

hir e , transfer, or promote, or to dis 
charge a handicapp e d p e rson b e caus e 
th e person has a communicable disease 
which would disqualifi' a non handicap 
p e d p e rson from similar e mployment. 
How e v e r, such action may b e talc e n on 
that basis only wh e n it has b e en d e ter 
min e d necessary to prev e nt th e spread 
ef — the — communicable — &f — infectious 
dis e ase. — Th e re must bo documentation 
of consultation with privat e physicians 
and/or public h e alth officials in arriving 
at th e d e termination. Concern for oth e r 



1114 



7:11 NORTH CAROLINA REGISTER September 1, 1992 



PROPOSED RULES 



omployooG who may f e ar worldng with 
th e inf e otod oo work e r must nev e r b e 



tho basis for th e 



th e abo e no e 



action, in 

of a modioally docum e nt e d health haz 
ard to oth e r p e rsons. 

0) It mu s t b e r e m e mb e r e d that AIDS, 

unlilc e most oommunioablo discxiBOfl, is 
transmitt e d only by e xchange of body 
fluid s through s e xual oontaot, shoring of 
n ee dl es and s yringes, or transfusion of 
inf e oted blood. According to tho U.S. 
D e partm e nt — ef — H e alth — aed — Human 
S e r^'ic e s, — Public H e alth — S e rvic e , — ae 
oases have b ee n found wh e r e th e AIDS 
virus has be e n transmitt e d by casual 
contact, and th e r e i s no ovidonoe that is 
can be transmitt e d by casual contact. 
Th e r e is no e vid e nc e that employing a 
person with — AIDS would pr e s e nt a 
h e alth hazard to oth e r persons in th e 
usual work plac e . 

Statutory Authority G.S. 126-4; 126-5(c)(l)-(4); 
126-16; 126-36; 168A-5(b)(3);P.L. 92-261, March 
24, 1972. 



SUBCHAPTER IL - AFFIRMATFVE 
ACTION 



SECTION .0100 



AFFIRMATFVE ACTION 
PLANS 



.0101 DUTIES OF SECTION 

Th e affirmativ e action s e ction of th e Offic e of 
Stat e P e rsonn e l is responsible for d e veloping and 
administ e ring a program to ensur e gr e at e r utilize 
tion of all p e rson s by id e ntify'ing pr e viou s ly und e r 
utiliz e d groups in th e workforce, such as minori 
tics, wom e n, and handicapp e d p e rsons; and male 
ing special e fforts toward th e ir r e cruitm e nt, s e l e o 
tion, dev e lopm e nt and upward mobility. 



Statutory Authority G.S. 126-4; 126-16. 

.0102 POLICY 

(a) It is th e official policy of the Stat e of North 
Carolina to provid e all current employees and 
applicants for stat e e mploym e nt with e qual em 
ploymont opportuniti e s, without discrimination on 
th e basis of rac e , color, r e ligion, national origin, 
s e x, age, or handicapping condition. 

(b) The commitm e nt to equal career opportunity 
shall bo und e rtak e n through a continuing program 
of affirmativ e action in ord e r to: 



(i) assur e that all p e rsonn e l polici e s and 

practic e s r e levant to total employment 
in stat e government will guarantee and 
pr es erv e e qual employment opportuni 
ti e s for all p e rsons of the state; 

{3) assur e mor e equitable repres e ntation of 

women, minorities, and handicapped 
p e rsons throughout all asp e cts of the 
state's workforc e . 



Statutory Authority G.S. 126-4(10); 126-16. 

.0103 PROGRAM IMPLEMEIVTATION: 
STATE LEVEL 

(a) Th e Office of Stat e Persoimol in cooperation 
with th e s e veral d e partm e nts of state 
gov e rnm e nt shall d e velop and implement 
a State Affirmativ e Action Plan to pro 
mot e e qual e mployment opportunity to 
includ e , but not b e limit e d to, the follow 






IBgr 

— r e cruitm e nt. 



intervi e wng, 

{^) s e l e ction, 

(4) hiring. 






promotion. 



training, 



(7) comp e nsation and b e n e fits, 

{S) p e rformanc e appraisal (WPPR), 

(9) reduction in forc e . 



{b) — Th e Offic e of Stat e P e r s onnel shall provide 
t e chnical assistanc e to e ach d e partm e nt of stat e 
gov e rnm e nt. 

Statutory Authority G.S. 126-4(10); 126-16. 

.0104 PROGRAM IMPLEMENTATION: 
DEPARTMENT AND UNFVERSITY 
LEVEL 

^a) — Each d e partm e nt h e od of stat e gov e rnm e nt 
aed — Univ e rsity — Chanc e llor — shall — d e v e lop — aad 
impl e m e nt a d e partm e ntal or univ e rsity affirmativ e 
action program d e sign e d to solv e probl e ms in 
thos e areas that adv e rs e ly aff e ct minorities, wom e n 
and handicapp e d p e rsons. 

(b) Each d e partment and univ e rsity shall pres e nt 
a plan for this affirmativ e action program to th e 
Offic e of Stat e P e rsonn e l for review, t e chnical 
assistanc e and approval by th e Dir e ctor of Stat e 
Personn elT 



affirm a 



(c) Each d e partm e nt's and universit>''s 
tiv e action plan shall m ee t all r e quir e m e nts of th e 
admini s trative EEO/AA Planning and Re s ource s 
Guid e and shall include but not b e limit e d to th e 
following e l e m e nts: 



7:11 NORTH CAROLINA REGISTER September 1, 1992 



1115 



PROPOSED RULES 



^4^ a workforoe analysis d e sign e d to e xam 

in e th e numb e r and levels at whioh it 
employs minoriti e s, women, and handi 
oapfxxi persons; 

(3) a s e t of obj e otiv e s, goals and tim e ta 

{^) a — r e cruitm e nt — program — d e sign e d — te 

attract minoriti e s, wom e n and handi 
capped p e rsons to all l e v e ls of e mploy 
m e nt; 

{4) an intervi e wing program that includ e s, 

for e ach vacancy, th e int e r>'i e wing of at 
least thro e applicants r e pr e sentative of 
the e thnic, s e x and handicapp e d oompo 
sition of availabl e applicants; 

{§) a program of promotion and car ee r 

ladders for pr e s e nt e mploy ee s; 

{6) a program of training to e nhance e m 

ploy ee d e v e lopment and advanc e m e nt 

opportunities. Such programs shall 

includ e a proc e ss to e nsure that minori 
ties, wom e n and handicapp e d p e rsons 
hav e ad e quat e r e pr e s e ntation and partic 
ipation in internal and ext e rnal training 
programs such as Sup e rvisory Training, 
Public Manag e rs Program, and Educa 
tionol Assistanc e Program; 

{^) a program of ori e ntation and training in 

e qual — e mploym e nt — opportunity — and 
affirmativ e action complianc e for all 
manag e rs, sup e rs'i s or s and oth e rs autho 
riz e d to mak e or r e comm e nd p e rsonn e l 
actions; 

^ R e duction in forc e proc e dur e s ape 

d e sign e d to maintain th e proportion of 
prot e ct e d group m e mb e rs in th e d e part 
mental — or univ e rsity — workforo e and 
pr e s e rv e s gains mad e in utilizing pro 
t e ot e d group m e mb e rs; 

(9) An annual int e rnal e valuation syst e m 

(WPPR) to hold manag e rs to all levels 
aooountabl e for th e progr e ss of the 
deportment's and univ e rsity's affirma 
tiv e action program; 

fW) an internal r e porting syst e m to m e asur e 

total program e ff e otiv e ness. 
(d) Each departm e nt h e ad shall assign responoi 
bility and authority for the affirmative action 
program to a high l e v e l official or an e qual e m 
ploym e nt opportuniti e s offic e r (EEOO). — Division 
heads and appropriat e supervisors shall participat e 
in d e v e loping th e program and shall b e r e sponsible 
for impl e m e nting it in the work unit. 



Statutory Authority G.S. 126-4(10); 126-16. 



.0105 PROGRAM PLAN REVIEW 

(g) Each state d e partm e nt/ageno)' and univoroity 
e mploying SPA employ ee s shall submit annually 
an Affirmativ e Action Plan (update of e ntire plan 
or r e visions as sp e cifi e d) or shall submit an applj 
cation for a thr ee y e ar EEO/iVA planning oy ele 
and g Throe year Affirmativ e Action plan to the 
Office of Stat e P e rsonnel for revi e w, tochnioal 
assistanc e , and approval by the Stat e Poraonncj 
Dir e ctor. Th e submission dat e will bo January 31 
for annual plans or January 3 1 of th e y e ar immodi 
at e ly following the loot year for whioh the previ - 
ously approv e d thr ee y e ar plan ended. 

(b) Each state department/ag e ncy and university 
applying for thre e y e ar Affirmative Action Plan 
approval shall, — in th e judg e m e nt of the Stato 
P e rsonn e l Dir e ctor, m ee t e ach of the proliminor)' 
r e quir e m e nts for three year EEO/jAi\ plan approval 
s tat e d — in th e Stxmdards — For Thr ee Y e ar Plan 
Approval issu e d by th e Equal Opportunity Sor . 'ioc e 
Division of the Offic e of Stat e P e rsonnel. 

{e) — All r e ports submitt e d to the Office of State 
P e rsonn e l shall b e r e vi e w e d by th e d e partment 
h e ad or univ e rsity chanc e llor and signed by the 
EEO Offic e r, vorify'ing th e proc e ss of program 
impl e m e ntation. 

Statutory Authority G.S. 126-4(10); 126-16. 

.0106 COMPLIANCE INFORMATION 

(a) — To gssist in th e evaluation of the Stat e 's 
Affirmativ e Action Program, e aoh state ag e ncy or 
institution shall provid e th e Stat e P e rsonnel Com 
mission with the following complianc e information 
conc e rning inv e stigations or other revi e w mad e by 
th e Equal Employm e nt Opportunity Commission, 
or through oourt proooodings: 

{i) A copy of all corr e spond e nc e to th e 

EEOC conc e rning a "negotiat e d s e ttl e 
m e nt," mor e r e c e ntly referred to as a 
no fault s e ttl e m e nt; 

(33 A copy of "position stat e m e nts" pr e 

par e d by th e d e partm e nt or institution 
which outlines an analys e s of th e facts 
and malces a recommendation to EEOC 
that they mak e a finding of no reason 
abl e caus e ; 

(5) wh e r e inv e stigations ar e oonduot e d by 

th e EEOC, a stat e m e nt as to th e natur e 
of th e complaint, a copy of the agree 
m e nt, conciliation, or other settlem e nt 



r e ach e d — b e tw t 



the EEOC 



-tbe 



wee — tee — bbUC — et- 
oourts — and th e — state — department or 
institution, including th e cost of settl e 
ment to th e stat e , if any. 



1116 



7:11 NORTH CAROLINA REGISTER September 1, 1992 



PROPOSED RULES 



{b) — The Offic e of State Poroormol will provid e 
s taff ooBistano e to ag e ncy EEO offio e ro in th e 
invootigation and preparation of r e gpono e s to th e 
EEOC. 

Statutory Authority G.S. 126-4; 126-16. 

SUBCHAPTER IL - EQUAL 
EMPLOYMEIVT OPPORTUNITY 

SECTION .0100 - EQUAL EMPLOYMENT 
OPPORTUNITY/DIVERSITY PLAN 

.0107 PURPOSE 

(a) In the State of North Carolina, neither race, 
religion, color, creed, national origin, sex, age, 
political affiliation, nor disability is to be consid- 
ered in the: 

(1) Recruitment, selection and hiring of 
new employees of the State: 

(2) Selection of employees for promotion, 
training, career development, transfer, 
re-assignment for fiscal purposes, and- 
/or reduction-in-force: 

(3) Administration of disciplinary policies 
or termination for cause: 

(4") Award of compensation, including 
salary adjustment, reallocations and/or 
annual performance increases; 

(5) Provision and administration of other 
terms, conditions or privileges of em- 
ployment: and 

(6) Administration and implementation of 
all personnel practices and policies. 

(b) Therefore, the purpose of this Rule is to 
ensure: equal employment o pportunity for a ppli- 
cants and employees: more equitable representation 
of traditionally underutilized groups; that the 
administration and implementation of all personnel 
rules, policies, practices and programs are fair and 
equitable; and to address the underutilizations that 
may be created by changing workforce demograph- 
ics and to help the State remain competitive in a 
global economy. 

(c) The State of North Carolina shall continue to 
take positive measures and develop programs to 
ensure the full utilization of underrepresented 
groups. 

(d) This Rule and any related rules, policies and 
programs adopted by the State Personnel Commis- 
sion represent the commitment of the State and 
shall be implemented by every State agency, 
department and university. 

Statutory Authority G.S. 126-4; 126-4(10); 126-16; 



S.L. 1991. c. 919. 

.0108 ADMINISTRATION 

(a) The head of each agency, department or 
university shall be responsible for the implementa- 
tion of this Rule and any related rules, policies or 
programs adopted by the State Personnel Commis- 
sion and shall take positive measures to ensure that 
equal opportunity is available in all areas of 
employment including: recruitment, selection, 
hiring, promotion, demotion, compensation, 
termination, reduction in force-layoffs, re-employ- 
ment priorities, and other terms, conditions and 
privileges of employment. 

(h) Measures shall also be taken to ensure a 
work environment consistent with the intent of this 
Rule and to provide instruction to managers and 
supervisors on management practices which sup- 
port equal opportunity and address the changing 
composition of the work force and its diversity. 

Statutory Authority G.S. 126-4(10); 126-16; S.L. 
1991, c. 919 

.0109 RESPONSIBILITIES OF THE STATE 
PERSONNEL COMMISSION 

The State Personnel Commission shall submit a 
report to the General Assembly on the status of 
Equal Employment Opportunity plans and pro- 
grams for all State departments, agencies, and 
universities, on or before June i of each year. 
The status report shall include: 

(1) Reasons for disapproval of any plan; 

(2) Data analysis of at least new hires and 
promotions, according to: 

(A) Number of persons employed by job 
category. 

(B) Salary. 

(C) Race. 

(D) Sex. 

(E) Other demographics: 

(3) Status of goal achievement. 



Statutory Authority G.S. 126-4(10); S.L. 1991, c. 
919 

.0110 RESPONSIBILITIES OF THE OFFICE 
OF STATE PERSONNEL 

The Equal Opportunity Services Division of the 
Office of State Personnel shall provide technical 
assistance, resource/supportprograms. monitoring, 
audit and evaluation, training, and oversight- 
Systems shall be developed to review, analyze and 
evaluate trends, and make recommendations 
regarding all personnel policies and decisions 



7:11 NORTH CAROLINA REGISTER September 1, 1992 



1117 



PROPOSED RULES 



affecting recruitment, rate of pay, hiring, promo- 
tions, training, reallocations, demotions, termina- 
tions, transfers, discipline and all other terms, 
privileges and conditions of employment. Data 
programs for EEO plan development and report- 
ing, which reflect NC's population at all occupa- 
tional levels, will be developed. The EOS Divi- 
sion shall also develop a statewide EEO plan. 

Statutory Authority G. S. 126-4; 126-16; S.L. 1991 , 
c. 919. 

.0111 RESPONSIBILITY OF 

DEPARTMENTS, AGENCIES, 
AND UNIVERSITIES 

{a} Each department/agency head and University 
Chancellor shall develop and implement a plan and 
program designed to solve problems in those areas 
that adversely affect minorities, women, persons 
with disabilities and other underutilized groups. 

fb) Each department/agency and university shall 
present its plan and program to the Office of State 
Personnel for review, technical assistance and 
approval by the Director of State Personnel. 

(c) Each department and university's plan and 
program shall meet all requirements of the Pro- 
gram Planning and Resources Guide and shall 
include, but not be limited to, the following ele- 
ments: 

(1) A Work Force Analysis designed to 
examine the number and levels at which 
minorities, women, persons with dis- 
abilities and older workers (40 -I-) are 
employed. 

(2) A Set of Numerical Goals based on 
North Carolina's population and the 
timetable for achieving identified goals. 

(3) A Set of Measurable Program Goals 
and Objectives. 

£4) A Recruitment Program designed to 
attract applicants to address the under- 
representation of women, minorities, 
persons with disabilities and older 
workers (40 -I- ) in all occupational 
categories. 

(5) An Interviewing Program that incudes, 
for each occupational category in which 
there is underutilization. efforts to 
generate at least three candidates repre- 
sentative of the underutilized group. 

(6) Selection Procedures designed to assure 
that the total process in no way discrim- 
inates on the basis of race, color, 
creed, religion, sex, age, national ori- 
gin, and disability. 



(7) A Program of Promotion and Career 
Development for present employees to 
enhance upward mobility and fully 
utilize the skills of the existing work- 
force. 

(8) A Program of Training to enhance 
employee development and advance- 
ment opportunities. Such program shall 
include a process to ensure that the 
traditionally underutilized groups (mi- 
norities, women and persons with dis- 
abilities) have adequate representation 
and participation in internal and exter- 
nal training programs including but not 
limited to occupational/technical train- 
ing in the assigned area of work. Super- 
visory Training. Public Managers Pro- 
gram, and Educational Assistance Pro- 
gram. 

(9) A Management Training Program in 
Equal Employment Opportunity for all 
managers, supervisors and others autho- 
rized to make or recommend personnel 
actions. 

(10) Reduction-in-ForceProcedures designed 
to analyze layoff decisions and to deter- 
mine their actual and/or potential ad- 
verse impact on underrepresented 
groups. 

(11) An Annual Performance Evaluation 
System (agency-specific); i.e., PMS to 
hold managers at all levels accountable 
for the progress of the department's/- 
agency's/university's equal employment 
opportunity program. The system 
should include the pay dispute resolu- 
tion process and the annual report from 
the pay advisory committee. 

(12) An Internal Data Management System 
to measure total program effectiveness. 

(13) A Positive Emphasis Program to at- 
tract, accommodate and retain persons 
with disabilities. 

(14) A Program to protect the right of older 
workers (40-I-). 

(15) A Sexual Harassment Prevention Train- 
ing Program to prevent and remedy 
sexual harassment in the workplace. 

(16) A Work and Family Issues Program 
designed to offer a variety of policies 
and practices to manage work and 
family concerns. 

(d) Each State department, agency and universi- 
ty shall submit on or before March 1 of each year 
an Equal Employment Opportunity Plan (update of 



1118 



7:11 NORTH CAROLINA REGISTER September 1, 1992 



PROPOSED RULES 



entire plan or revisions as specified) or shall 
submit an a pplication for a three-year EEO plan- 
ning cycle and a Three-year Equal Employment 
Opportunity plan to the Office of State Personnel 
for review, technical assistance and approval by 
the State Personnel Director. A pplications for 
three-year plans shall be submitted by Jcmuary 31. 
Plans not in by the specified date will be disap- 
proved. 

(e) Each state department/agency and university 
applying for three-year Equal Employment Oppor- 
tunity Plan approval shall, in the iudjgment of the 
State Personnel Director, meet each of the prelimi- 
nary requirements for three-year EEO plan approv- 
al stated in the Standards For Three- Year Plan 
A pproval issued (in the Planning and Resources 
Guide) by the Equal Opportunity Services Division 
of the Office of State Personnel. 

Statutory Authority G.S. 126-4(10); 126-16; S.L. 
1991, c. 919. 

.0112 SPECIAL PROVISION RELATIVE TO 
POSITIVE MEASURES 

A Positive Measures Program has been identified 
by State Govenmient as a means to achieve equal 
employment o pportunity in and throughout all 
aspects of its workforce. Positive Measures as 
related to the EEO plan means structured, continu- 
ous activities and programs designed to address the 
underrepresentation of women, minorities, persons 
with disabilities, and older workers (40 + ) in the 
North Carolina State government workforce. 
Special efforts should be made toward the recruit- 
ment, selection, development and upward mobility 
of women, minorities, persons with disabilities, 
and older workers (40 -h) to ensure greater utiliza- 
tion of the diverse workforce. 

Statutory Authority G.S. 126-4(10); 126-16; S.L. 
1991, c. 919. 

.0113 SPECIAL PROVISION RELATIVE TO 
AGE 

Equal employment o pportunity plan as related to 
age applies only to persons who are age 40 and 
over. State and Federal laws prohibit employment 
discrimination on the basis of age for these per- 
sons. It is unlawful "to fail or refuse to hire or to 
discharge any individual or otherwise discriminate 
against any individual with respect to his/her 
compensation, terms, conditions, or privileges of 
employment, because of such individual's age". 

Statutory Authority G.S. 126-4; 126-16; 126-36; 



S.L. 1991, c. 919. 

.0114 SPECIAL PROVISION RELATIVE TO 
DISABILITY 

(a) Equal employment o pportunity for persons 
with disabilities includes the making of a reason- 
able accommodation for the known disabilities of 
a qualified applicant or employee with a disability 
who would be able to perform the essential func- 
tions of the job if such accommodation is made. 
This may include: making facilities used by em- 
ployees readily accessible to and usable by such 
person: job re-structuring (re-assigning non-essen- 
tial functions and/or using part-time or modified 
work schedules): acquisition or modification of 
equipment or devices: provision of readers or 
interpreters: and/or other similar actions. Agen- 
cies are required to make such adjustments for the 
known disabilities of qualified applicants and 
employees, unless it can be demonstrated that a 
particular adjustment, alteration, or modification 
would impose an undue hardship on the operation 
of the agency. 

(b) Whether an accommodation is reasonable 
must depend on the facts in each case. Factors to 
be considered in determining this include: the net 
cost of the accommodation needed: the resources 
of the agency: the type of operation including 
structure and functions of the workforce: and the 
impact of the accommodation on the operation of 
the agency. 

Statutory Authority G.S. 126-4; 126-16; 126-36; 
S.L 1991, c. 919. 

.0115 SPECIAL PROVISION RELATIVE TO 
COMMUNICABLE/INFECTIOUS 
DISEASES 

(a) Persons with communicable or infectious 
disease, including AIDS/HIV are persons with 
disabilities under the Rehabilitation Act. Section 
504. as amended and the Americans with Disabili- 
ties Act of 1990. This includes persons who test 
positive for HIV without having the symptoms of 
AIDS. All of the statutory provisions relative to 
persons with disabilities are a pplicable to persons 
with communicable and infectious diseases, includ- 
ing the requirement for a reasonable accommoda- 
tion for the known disabilities of a qualified 
a pplicant or employee. 

(b) AIDS/HIV, unlike most communicable 
diseases, has been shown to be transmitted only by 
exchange of body fluids through sexual contact, 
sharing of needles and syringes, or transfiision of 
infected blood. According to the U.S. Department 



7:11 NORTH CAROLINA REGISTER September 1, 1992 



1119 



PROPOSED RULES 



of Health and Human Services, Public Health 
Service, no cases have been found where 
AIDS/HIV has been transmitted by casual contact, 
and there is no evidence that it can be transmitted 
by casual contact. There is no evidence that 
employing a person with AIDS/HIV would present 
a health hazard to other persons in the usual work 
place. 

Statutory Authority G.S. 126-4; 126-16: 126-36; 
S.L. 1991, c. 919. 

.0116 DIRECT THREAT TO HEALTH OR 
SAFETY 

fa) There is no requirement that a person with a 
disability be employed in a position in which the 
individual would create a direct threat to health or 
safets' in the workplace. Under the Americans 
with Disabilities Act of 1990. however, rejection, 
re-assignment, or dismissal of an appli- 
cant/employee on the basis of a direct threat to 
health or safety requires: 

(1) Evidence of a significant risk of sub- 
stantial harm; 

Identification of the specific risk; 
Prevalence of the risk at the time (risk 
cannot be speculative or remote); 
Assessment of the risk that is based on 
objective medical or other factual evi- 
dence regarding a particular individual. 

fb) Even if a significant risk of substantial harm 
exists, the agency must consider whether the risk 
can be eliminated or reduced below the level of a 
direct threat by reasonable accommodation. 

Statutory^ Authority G.S. 126-4; 126-16; 168A- 
5(b)(2); S.L. 1991, c. 919. 

.0117 SPECIAL PROVISION RELATIVE TO 
BONA FIDE OCCUPATIONAL 
QUALIFICATIONS 

(a) Age or sex may be considered if they consti- 



13] 
14} 



tute a bona fide occupational qualification neces- 
sary forjob performance in the normal operations 
of the agency. Whether such a requirement is a 
bona fide occupational qualification will depend on 
the facts in each case. This exemption will be 
construed very narrowly and the agency will have 
the burden of proving the exemption is justified. 

fb) To establish age or sex as a bona fide occu- 
pational qualification, it will be necessary to 
submit a recommendation to the Office of State 
Personnel setting forth all facts and justification as 
to v.'hy the requirement should be considered as a 
reasonable employment factor in each of the 



classifications in question. 

Statutory Authority G.S. 126-4; 126-16; 126-36; 
S.L. 1991. c. 919. 

.0118 QUALIFICATION STANDARDS THAT 
SCREEN OUT DISABIUmES 

Under the Americans with Disabilities Act, tests, 
physical or mental requirements, or an^^ other 
qualification standards that screen out persons with 
disabilities must be job-related and consistent with 
business necessity. Evidence of job-relatedness 
and business necessity may include a job descrip- 
tion written before advertising the position and/or 
a review of the actual work currently performed 
by an individual on the job. However, job related- 
ness and business necessity do not relieve the 
agency from providing reasonable accommodations 
if the individual: 

(1) Possesses the pre-requisites for the job in 
question; and 

(2) Can perform the essential functions of the 
job with reasonable accommodations. 

Statutory Authority G.S. 126-4; 126-16; S.L. 1991, 
c. 919. 

.0119 DISCRIMINATION COMPLAINTS 

(a) Any applicant for employment or any em- 
ployee who believes that employment, promotion, 
training, transfer, salary, salary adjustment or a 
performance increase was denied him/her or that 
demotion, transfer, lay-off or termination was 
forced on him/her, because of race, religion, 
color, creed, national origin, sex, age, political 
affiliation, or disability may appeal directly to the 
Office of Administrative Hearings. 

(b) Direct appeal to Ae State Personnel Com- 
mission on the basis of political affiliation discrim- 
ination is provided only to employees who have 
achieved permanent status pursuant to G.S. 126-39 
or in positions subject to competitive service^ 

(c) Retaliatory actions against employees or 
applicants for employment who make a charge of 
employment discrimination, or testify, assist or 
participate in any manner in a hearing, proceeding 
or investigation of employment discrimination are 
prohibited. 

Statutory Authority G.S. 126-4; 126-16; 126-36; 
126-39; S.L. 1991, c. 919. 



1120 



7:11 NORTH CAROLINA REGISTER September 1, 1992 



RRC OBJECTIONS 



1 he Rules Review Commission (RRC) objected to the following rules in accordance with G.S. 143B- 
30.2(c). State agencies are required to respond to RRC as provided in G.S. 143B-30.2(d). 



AGRICULTURE 

Structural Pest Control Division 

2 NCAC 34 .0406 - Spill Control 

2 NCAC 34 .0603 - Waivers 

2 NCAC 34 .0902 - Financial Responsibility 

ECONOMIC AND COMMUNITY DEVELOPMENT 

ABC Commission 

4 NCAC 2R .0702 - Disciplinary Action of Employee 

Rule Returned to Agency 
4 NCAC 2R . 1205 - Closing of Store 

Agency Repealed Rule 
4 NCAC 2S .0503 - Pre-Orders 

Rule Returned to Agency 

ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 

Coastal Management 

15A NCAC 7H .0306 - General Use Standards for Ocean Hazard Areas 
Rule Returned to Agency 

Departmental Rules 

15 A NCAC IJ .0204 - Loans from Emergency Revolving Loan Accounts 

15A NCAC IJ .0302 - General Provisions 

15 A NCAC IJ .0701 - Public Necessity: Health: Safety and Welfare 

Environmental Health 

15A NCAC 18A .3101 - Definitions 
Agency Revised Rule 

Environmental Management 

15A NCAC 20 .0302 - Self Insurance 

Health: Epidemiology 

15A NCAC 19H .0601 - Birth Certificates 
Agency Revised Rule 

Soil and Water Conservation 



RRC Objection 07/16/92 
RRC Objection 07/16/92 
RRC Objection 07/16/92 



RRC Objection 05/21/92 
06/18/92 
RRC Objection 05/21/92 
Obj. Removed 06/18/92 
RRC Objection 05/21/92 
06/18/92 



RRC Objection 05/21/92 
06/18/92 



RRC Objection 06/18/92 
RRC Objection 06/18/92 
RRC Objection 06/18/92 



RRC Objection 06/18/92 
Obj. Removed 06/18/92 



RRC Objection 06/18/92 



RRC Objection 06/18/92 
Obj. Removed 06/18/92 



7:11 NORTH CAROLINA REGISTER September 1, 1992 



1121 



RRC OBJECTIONS 



15 A NCAC 6E .0007 - Cost Share Agreement 
Agency Revised Rule 

Wildlife Resources and Water Safety 

15A NCAC lOE .0004 - Use of Areas Regulated 

HUMAN RESOURCES 

Aging 

10 NCAC 22R .0301 - Definitions 
Agency Revised Rule 

Day Care Rules 

10 NCAC 46D .0305 - Administration of Program 

Agency Revised Rule 
10 NCAC 46D .0306 - Records 

Agency Revised Rule 

Mental Health: General 

10 NCAC MM .0704 - Program Director 

Agency Revised Rule 

INSURANCE 
Departmental Rules 

11 NCAC 1 .0106 - Organization of the Department 

Agency Revised Rule 

Multiple Employer Welfare Arrangements 

11 NCAC 18 .0019 - Description of Forms 

Seniors' Health Insurance Information Program 

;; NCAC 17 .0005 - SHllP Inquiries to Insurers and Agents 

LICENSING BOARDS AND COMMISSIONS 

Dietetics/Nutrition 

21 NCAC 17 .0014 - Code of Ethics for Professional Practice/Conduct 
Agency Revised Rule 
Agency Revised Rule 

STATE PERSONNEL 

Office of State Personnel 

25 NCAC IE .1301 - Purpose 
25 NCAC IE .1302- Policy 



RRC Objection 06/18/92 
Obj. Removed 06/18/92 



RRC Objection 06/18/92 



RRC Objection 07/16/92 
RRC Objection 07/16/92 



RRC Objection 06/18/92 

Obj. Removed 06/18/92 

RRC Objection 06/18/92 

Obj. Removed 06/18/92 



RRC Objection 05/21/92 
Obj. Removed 06/18/92 



RRC Objection 06/18/92 
Obj. Removed 06/18/92 



RRC Objection 06/18/92 



RRC Objection 06/18/92 



RRC Objection 05/21/92 
RRC Objection 05/21/92 
Obj. Removed 06/18/92 



RRC Objection 07/16/92 
RRC Objection 07/16/92 



1122 



7:11 NORTH CAROLINA REGISTER September 1, 1992 



RRC OBJECTIONS 



25 NCAC IE . 1303 - Administration RRC Objection 07/16/92 

25 NCAC IE . 1304 - Qualifying to Participate in Voluntary Shared Leave Prgm RRC Objection 07/16/92 

25 NCAC IE . 1305 - Donor Guidelines RRC Objection 07/16/92 

25 NCAC IE . 1306 - Leave Accounting Procedures RRC Objection 07/16/92 

25 NCAC IH .0603 - Special Recruiting Programs RRC Objection 05/21/92 

Agency Repealed Rule Obj. Removed 06/18/92 

25 NCAC II .1702 - Employment of Relatives RRC Objection 07/16/92 

25 NCAC II . 1903 - Applicant Information and Application RRC Objection 07/16/92 

25 NCAC II .2401 - System Portion I: Recruitment, Selection, & Advancement RRC Objection 07/16/92 

25 NCAC II .2402 - System Portion II: Classification/Compensation RRC Objection 07/16/92 

25 NCAC II .2403 - System Portion III: Training RRC Objection 07/16/92 

25 NCAC II . 2404 - System Portion IV: Employee Relations RRC Objection 07/16/92 

25 NCAC 11 .2405 - System Portion V: Equal Emp Oppty/Affirmative Action RRC Objection 07/16/92 

25 NCAC II .2406 - System Portion VI: Political Activity RRC Objection 07/16/92 

25 NCAC IJ . 1005 - Eligibility for Services RRC Objection 05/21/92 

Agency Revised Rule Obj. Removed 06/18/92 



7:11 NORTH CAROLINA REGISTER September 1, 1992 



1123 



RULES INVALIDATED BY JUDICIAL DECISION 



Ihis Section of the Register lists the recent decisions issued by the North Carolina Supreme Court, 
Court of Appeals, Superior Court (when available), and the Office of Administrative Hearings which 
invalidate a rule in the North Carolina Administrative Code. 



1 NCAC 5A .0010 - ADMINISTRATIVE PROCEDURES 

Thomas R. West, Administrative Law Judge with the Office of Administrative Hearings, declared two portions 
of Rule 1 NCAC 5A .0010 void as applied in Stauffer Information Systems, Petitioner v. The North Carolina 
Department of Community Colleges and The North Carolina Department of Administration, Respondent and 
The University of Southern California, Intervenor-Respondent (92 DOA 0666). 

15A NCAC 19A .0202(d)(10) - CONTROL MEASURES - fflV 

Brenda B. Becton, Administrative Law Judge with the Office of Administrative Hearings, declared Rule 15A 
NCAC 19A .0202(d)(10) void as applied in ACT-UP TRIANGLE (AIDS Coalition to Unleash Power Triangle), 
Steven Harris, and John Doe, Petitioners v. Commission for Health Services of the State of North Carolina, 
Ron Levine, as Assistant Secretary of Health and State Health Director for the Department of Environment, 
Health, and Natural Resources of the State of North Carolina, William Cobey, as Secretary of the Department 
of Environment, Health, and Natural Resources of the State of North Carolina, Dr. Rebecca Meriwether, as 
Chief, Communicable Disease Control Section of the North Carolina Department of Environment, Health, and 
Natural Resources, Wayne Bobbitt Jr. , as Chief of the HIV/STD Control Branch of the North Carolina 
Department of Environment , Health, and Natural Resources , Respondents (91 EHR 0818). 



1124 7:11 NORTH CAROLINA REGISTER September 1, 1992 



CONTESTED CASE DECISIONS 



1 his Section contains the full text of some of the more significant Administrative Law Judge decisions 
along with an index to all recent contested cases decisions which are filed under North Carolina 's 
Administrative Procedure Act. Copies of the decisions listed in the index and not published are available 
upon request for a minimal charge by contacting the Office of Administrative Hearings, (919) 733-2698. 



KEY TO CASE CODES 



ABC Alcoholic Beverage Control Commission DST 

BDA Board of Dental Examiners EDC 

BME Board of Medical Examiners EHR 

BMS Board of Mortuary Science 

BOG Board of Geologists ESC 

BON Board of Nursing HAF 

BOO Board of Opticians HRC 

CFA Commission for Auctioneers IND 

COM Department of Economic and Community INS 

Development LBC 

CPS Department of Crime Control and Public Safety MLK 

CSE Child Support Enforcement NHA 

DAG Department of Agriculture OAH 

DCC Department of Community Colleges OS? 

DCR Department of Cultural Resources PHC 

DCS Distribution Child Support 

DHR Department of Human Resources POD 

DOA Department of Administration SOS 

DOJ Department of Justice SPA 

DOL Department of Labor 

DSA Department of State Auditor WRC 



Department of State Treasurer 
Department of Public Instruction 
Department of Environment, Health, and 
Natural Resources 
Employment Security Commission 
Hearing Aid Dealers and Fitters Board 
Human Relations Committee 
Independent Agencies 
Department of Insurance 
Licensing Board for Contractors 
Milk Commission 

Board of Nursing Home Administrators 
Office of Administrative Hearings 
Office of State Personnel 
Board of Plumbing and Heating 
Contractors 

Board of Podiatry Examiners 
Department of Secretary of State 
Board of Examiners of Speech and Language 
Pathologists and Audiologists 
Wildlife Resources Commission 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Anne R. Gwaltney, Milton H. Askew, Jr. 
and Anna L. Askew 

V. 

EHR and Pamlico County Health Department 


89 DHR 0699 


Reilly 


07/17/92 


Eleanor R. Edgerton-Taylor 

V. 

Cumberland County Department of Social Services 


89 0SP 1141 


Morrison 


08/18/92 


Annette Carlton 

V. 

Cleveland County Department of Social Services 


90 OSP 0024 


Chess 


08/14/92 


Janice Parker Haughton 

V. 

Halifax County Mental Health, Mental Retardation, 
Substance Abuse Program 


90 OSP 0221 


West 


08/18/92 



7:11 NORTH CAROLINA REGISTER September 1, 1992 



1125 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DAIE 


CSX Transportation, Inc. 

V. 

Department of Environment, Health, & Natural Resources 


90 EHR 0628 


Reilly 


07/17/92 


Bruce Keeter 

V. 

Beaufort County Health Department 


90 EHR 0666 


Morgan 


07/28/92 


JHY Concord, Inc. 

V. 

Department of Labor 


90 DOL 1421 


Morgan 


07/28/92 


Lick Fork Hills, Inc., Marion Bagwell, President 

V. 

Department of Environment, Health, & Natural Resources 


91 EHR 0023 


Morgan 


07/28/92 


Albert J. Johnson 

V. 

N.C. Victims Compensation Commission 


91 CPS 0038 


Morgan 


07/28/92 


William B. Holden 

V. 

Department of Environment, Health, & Natural Resources 


91 EHR 0176 


Morgan 


08/18/92 


Brenda P. Price 

v. 

North Carolina Central University 


91 OSP 0219 


Morrison 


08/21/92 


Century Care of Laurinburg, Inc. 

v. 

DHR, Division of Facility Services, Licensure Section 


91 DHR 0257 


West 


06/30/92 


Richard L. Gainey 

V. 

Department of Justice 


91 OSP 0341 


Becton 


08/10/92 


Wade Charles Brown, Jr. 

V. 

N.C. Crime Victims Compensation Commission 


91 CPS 0345 


Chess 


07/08/92 


Charles E. Roe 

V. 

Department of Environment, Health, & Natural Resources 


91 OSP 0520 


Nesnow 


07/23/92 


Lisa M. Reichstein 

V. 

Office of Student Financial Aid, East Carolina University 


91 OSP 0662 


Nesnow 


06/24/92 


DHR, Division of Facility Svcs, Child Day Care Section 

V. 

Mary Goodwin, Jean Dodd, D/B/A Capital City Day Care 

Center 


91 DHR 0720 


Morgan 


07/30/92 


Kenneth Helms 

V. 

Department of Human Resources 


91 OSP 0729 


Chess 


07/15/92 



1126 



7:11 NORTH CAROLINA REGISTER September 1, 1992 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DAIE 


Alcoholic Beverage Control Commission 

V. 

Daniels Investments, Inc., t/a Leather & Lace - East 
4205 Monroe Road, Charlotte, N.C. 28205 


91 ABC 0799 


Mann 


07/14/92 


Zelma Babson 

V. 

Brunswick County Health Department 


91 OSP 0804 


Gray 


08/14/92 


ACT-UP Triangle (AIDS Coalition to Unleash Power 
Triangle, Steven Harris, and John Doe 

V. 

Commission for Health Services of the State of N.C, Ron 

Levine, as Assistant Secretary of Health and State Health 

Director for EHR of the State of N.C, William Cobey, as 

Secretary of EHR of the State of N.C, Dr. Rebecca 

Meriwether, as Chief, Communicable Disease Control 

Section of the N.C. EHR, Wayne Bobbitt, Jr., as Chief of 

the mV/STD Control Branch of the N.C. EHR 


91 EHR 0818 


Becton 


07/08/92 


Jane C O'Malley, Melvin L. Cartwright 

V. 

EHR and District Health Department Pasquotank-Perquim- 
ans-Camden-Chowan 


91 EHR 0838 


Becton 


07/02/92 


Thomas E. Vass 

V. 

James E. Long, Department of Insurance 


91 INS 0876 


Morrison 


08/14/92 


Grotgen Nursing Home, Inc., Britthaven, Inc. 

V. 

Certificate of Need Section, Div of Facility Svcs, DHR 


91 DHR 0964 
91 DHR 0966 


Nesnow 


07/06/92 


Ramona S. Smith, R.N. 

V. 

N.C. Teachers'/St Emps' Comp Major Medical Plan 


91 DST 0984 


Chess 


06/18/92 


Walter McGlone 

V. 

DHR, Division of Social Services, CSE 


91 CSE 1030 


Morrison 


07/13/92 


William Oscar Smith 

V. 

DHR, Division of Social Services, CSE 


91 CSE 1042 


Gray 


07/24/92 


William Watson 

V. 

DHR, Division of Social Services, CSE 


91 CSE 1047 


Becton 


07/08/92 


Marie McNeill-Pridgen 

V. 

Department of Environment, Health, & Natural Resources 


91 EHR 1059 


Nesnow 


07/17/92 



7:11 NORTH CAROLINA REGISTER September 1, 1992 



1127 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DAIE 


Catawba Memorial Hospital 

V. 

DHR, Div of Facility Svcs, Certificate of Need Section 

and 
Frye Regional Medical Ctr, Inc. and Amireit (Frye), Inc. 

and 

Thorns Rehabilitation Hospital Health Services Corp. 

and 

Frye Regional Medical Ctr, Inc. and Amireit (Frye), Inc. 

V. 

DHR, Div of Facility Svcs, Certificate of Need Section 

and 

Thorns Rehabilitation Hospital Health Services Corp. 

and 

Catawba Memorial Hospital 


91 DHR 1061 
91 DHR 1087 


Reilly 


07/13/92 


Edward R. Peele 

V. 

Sheriffs' Education & Training Stds. Commission 


91 DOJ 1092 


Morrison 


08/18/92 


William Torres 

V. 

Dept of Justice, Lacy H. Thomburg, Attorney General 


91 DOJ 1098 


Morrison 


08/07/92 


Wade A. Burgess 

V. 

DHR, Division of Social Services, CSE 


91 CSE 1114 


Gray 


07/01/92 


Harry L. King 

V. 

Department of Transportation 


91 OSP 1162 


Morgan 


07/13/92 


Gilbert Lockhart 

V. 

DHR, Division of Social Services, CSE 


91 CSE 1178 


Morrison 


07/30/92 


Isaac H. Galloway 

V. 

DHR, Division of Social Services, CSE 


91 CSE 1190 


Reilly 


06/30/92 


Russell A. Barclift 

V. 

DHR, Division of Social Services, CSE 


91 CSE 1207 

92 CSE 0275 


Reilly 


06/30/92 


Herman Edward Main II 

V. 

DHR, Division of Social Services, CSE 


91 CSE 1225 


Nesnow 


07/07/92 


Albert Louis Stoner III 

V. 

DHR, Division of Social Services, CSE 


91 CSE 1244 


Gray 


07/01/92 


James E. Greene 

V. 

DHR, Division of Social Services, CSE 


91 CSE 1245 


Nesnow 


07/14/92 



1128 



7:11 NORTH CAROLINA REGISTER September 1, 1992 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Joseph W. Harris 

V. 

DHR, Division of Social Services, CSE 


91 CSE 1247 


Morgan 


07/28/92 


Rodney Powell 

V. 

DHR, Division of Social Services, CSE 


91 CSE 1257 


Morgan 


07/29/92 


Floyd L. Rountree 

V. 

DHR, Division of Social Services, CSE 


91 CSE 1275 


Morgan 


07/22/92 


Ruth Smith Hensley Shondales 

v. 

ABC Commission 


91 ABC 1280 


Chess 


08/05/92 


City -Wide Asphalt Paving, Inc. 

V. 

Department of Environment, Health, & Natural Resources 


91 EHR 1360 


Chess 


07/01/92 


Alcoholic Beverage Control Commission 

V. 

Tre Three, Inc., T/A Crackers, 
Airport Rd., Rockingham, NC 28379 


91 ABC 1372 


Chess 


07/07/92 


Alcoholic Beverage Control Commission 

V. 

Rode Enterprises, Inc., T/A Jordan Dam Mini Mart 


91 ABC 1388 


Gray 


07/30/92 


Donald R. Allison 

V. 

DHR, Caswell Center 


91 OSP 1427 


Reilly 


06/30/92 


Lavem Fesperman 

V. 

Mecklenburg County 


92 OSP 0030 


Chess 


07/17/92 


Carrolton of Williamston, Inc. 

V. 

DHR, Division of Facility Services, Licensure Section 


92 DHR 0071 


Becton 


08/19/92 


Fred Jennings Moody Jr. 

V. 

Sheriffs' Education & Training Stds. Commission 


92 DOJ 0084 


Chess 


07/17/92 


Ronnie Lamont Donaldson 

V. 

Sheriffs' Education & Training Standards Commission 


92 DOJ 0092 


Reilly 


07/27/92 


Marvin Helton, Je.an Helton 

V. 

DHR, Division of Facility Services 


92 DHR 0102 


Chess 


08/14/92 


Peggy N. Barber 

V. 

The University of North Carolina at Chapel Hill 


92 OSP 0120 


Reilly 


07/13/92 



7:11 NORTH CAROLINA REGISTER September 1, 1992 



1129 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Alcoholic Beverage Control Commission 

V. 

John Wade Lewis, t/a Tasty Grill 


92 ABC 0145 


Nesnow 


07/15/92 


Licensing Board for General Contractors 

V. 

Wright's Construction, Inc. (Lie. No. 23065) 


92 LBC 0172 


Gray 


07/31/92 


Ray Bryant 

V. 

Department of Labor, OSHA 


92 DOL 0187 


Nesnow 


08/07/92 


Herbert Mines Jr., H&H 

V. 

Alcoholic Beverage Control Commission 


92 ABC 0189 


Becton 


07/22/92 


Frances B. Billingsley 

V. 

Bd. of Trustees/Teachers & St Employees Retirement Sys 


92 DST 0205 


Morgan 


08/18/92 


Lawrence Neal Murrill T/A Knox, 507 1st St SW, 
Hickory, NC 28602 

V. 

Alcoholic Beverage Control Commission 


92 ABC 0220 


Chess 


08/03/92 


Town of Denton 

v. 

Department of Environment, Health, & Natural Resources 


92 EHR 0241 


Reilly 


07/30/92 


Alcoholic Beverage Control Commission 

v. 

Byrum's of Park Road, Inc., T/A Byrum's Restaurant 


92 ABC 0252 


Gray 


07/30/92 


Alcoholic Beverage Control Commission 

V. 

Leo's Delicatessen #2, Inc., T/A Leo's #2 


92 ABC 0255 


Gray 


07/30/92 


North Topsail Water & Sewer, Inc. 

V. 

Department of Environment, Health, & Natural Resources 


92 EHR 0266 


Morrison 


08/12/92 


Jonathan L. Fann 

V. 

U.N.C. Physical Plant, Herb Paul, Louis Hemdon, Dean 
Justice, Bruce Jones 


92 OSP 0363 


Becton 


08/19/92 


Douglas A. Bordeaux 

V. 

Department of Correction 


92 OSP 0378 


Chess 


07/10/92 


Clifton R. Johnson 

V. 

O'Berry Center, Department of Human Resources 


92 OSP 0381 


West 


07/08/92 



1130 



7:11 NORTH CAROLINA REGISTER September 1, 1992 



CONTESTED CASE DECISIONS 





CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Southeastern Machine & Tool Company, Inc. 

V. 

Department of Environment, Health, & Natural Resources 


92 EHR 0386 


Becton 


07/20/92 


Louvenia Clark 

V. 

Edgecombe County Department of Social Services 


92 OSP 0402 


Reilly 


08/21/92 


Mr. & Mrs. James C. Stanton 

V. 

Charlotte-Mecklenburg School System 


92 EDC 0430 


Nesnow 


08/04/92 


Northview Mobile Home Park 

V. 

Department of Environment, Health, & Natural Resources 


92 EHR 0507 


Reilly 


07/13/92 


Yolanda Lynn Bethea 

v. 

DHR, Division of Social Services, CSE 


92 DCS 0513 


Becton 


08/14/92 


Alice Hunt Davis 

V. 

Department of Human Resources 


92 OSP 0526 


West 


07/16/92 


Jimmy F. Bailey Sr. 

V. 

Department of State Treasurer, Retirement Systems Div 


92 DST 0536 


Morgan 


08/18/92 


Bramar, Inc., t/a Spike's 

v. 

Alcoholic Beverage Control Commission 


92 ABC 0554 


Mann 


08/13/92 


Ralph J. Ogbum 

V. 

Private Protective Services Board 


92 DOJ 0571 


Nesnow 


08/07/92 


Gilbert Todd Sr. 

v. 

Public Water Supply Section 


92 EHR 0586 


Morrison 


08/06/92 


John W. Surles 

V. 

N.C. Crime Victims Compensation Commission 


92 CPS 0595 


Reilly 


07/13/92 


Pamela Jean Gass 

V. 

DHR, Division of Social Services, CSE 


92 DCS 0623 


Morrison 


08/14/92 


J.W. Reed 

v. 
Department of Correction 


92 OSP 0638 


Morrison 


08/11/92 


Carson Davis 

V. 

Department of Correction 


92 OSP 0650 


Reilly 


08/10/92 





7:11 NORTH CAROLINA REGISTER September 1, 1992 



1131 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DAIE 


Stauffer Information Systems 

V. 

Department of Community Colleges and the N.C. 

Department of Administration 

and 

The University of Southern California 


92 DOA 0666 


West 


07/08/92 


Nancy J. Tice 

V. 

Administrative Off of the Courts, Guardian Ad Litem Svcs 


92 OSP 0674 


Morrison 


08/11/92 


L. Stan Bailey 

V. 

Chancellor Moran and UNC- Greensboro 


92 OSP 0679 


West 


07/10/92 


Arnold McCloud T/A Club Castle 

V. 

Alcoholic Beverage Control Commission 


92 ABC 0681 


Morrison 


07/25/92 


Joyce Faircloth, T/A Showcase Lx)unge 

v. 
Alcoholic Beverage Control Commission 


92 ABC 0713 


Morrison 


07/25/92 



1132 



7:11 NORTH CAROLINA REGISTER September 1, 1992 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 



COUNTY OF WAKE 



IN THE OFFICE OF 
ADMINISTRATrVE HEARINGS 
90 EHR 0628 



CSX TRANSPORTATION, INC. 
Petitioner, 



N.C, DEPARTMENT OF ENVIRONMEP^, 
HEALTH, AND NATURAL RESOURCES, 
Respondent. 



RECOMMENDED DECISION 



THIS MATTER was heard before the undersigned administrative law judge on April 15, 1992 
pursuant to Petitioner's Motion for Separate Trial on the Issue of Federal Preemption. Petitioner introduced 
eight exhibits. The Court heard testimony from Petitioner's witness, Mr. William J. Griffin (hereinafter 
"Griffin"). Mr. Griffin was offered by Petitioner and, without objection by Respondent, accepted by the 
undersigned as an expert in the field of railroad right-of-way maintenance and federal railroad safety 
requirements pertaining thereto.' Respondent introduced no exhibits and called no witness. 



PETITIONER: 



RESPONDENT: 



APPEARANCES 

Frank H. Sheffield, Jr., Esquire 
Amos C. Dawson, III, Esquire 

Donald W. Laton, Esquire 
Kathryn Jones Cooper, Esquire 

ISSUES 



1. Are the provisions of the North Carolina Sedimentation Pollution Control Act, N.C. Gen. 
Stat. §113A-50, et seq.. ("SPCA") as applied to Petitioner's railroad maintenance activities preempted by the 
Federal Railroad Safety Act, 45 U.S.C. 421, et sec^, ("FRSA") and the Commerce Clause, U.S. Const., Art. 
1, sec. 8, cl. 3? 

2. Are railroad right-of-way maintenance activities a "land-disturbing activity" as defined in 
N.C.G.S. § 113A-52 (6) of the SPCA? 

FINDINGS OF FACT 

A. CSX Transportation, Inc. ("CSXT") is a Virginia corporation duly registered and doing 



'References to supporting evidence are made by reference to the relevant exhibit number and page number 
of the transcript of the witness' testimony. 



7:11 NORTH CAROLINA REGISTER September 1, 1992 



1133 



CONTESTED CASE DECISIONS 



business in the State of North Carolina. 

B. CSXT owns and operates an interstate railroad system in 20 states and Canada. Such system 
includes a segment of railroad line which runs from Hamlet, North Carolina to Laurel Hill, North Carolina 
(hereinafter "site"), a distance of approximately 10 miles. 

C. Railroad right-of-way maintenance activity was carried out on the site by CSXT in 1989 for 
the purpose of reshaping and rehabilitating the roadbed and drainage features of that segment of track. 
Approximately 121 acres were affected by such activity. 

D. Respondent sent to CSXT a Notice of Violation dated June 16, 1989, a Notice of Violation 
dated June 27, 1989, a Notice of Continuing Violations dated August 1, 1989, and a Notice of Additional 
Violations dated October 25, 1989 alleging CSXT's failure to comply with various provisions of the SPCA 
with respect to such maintenance activities. 

E. CSXT submitted erosion control plans for the subject activities on December 13 and 21, 1989 
and received approval of such plans from the Land Quality Section by letter dated December 22, 1989. Based 
on an inspection conducted by the Land Quality Section on May 15, 1990, the site was determined to meet 
all requirements of the SPCA alleged by Respondent to apply to such activities. 

F. The Director of the Division of Land Resources of Respondent issued a FINDINGS AND 
DECISION AND ASSESSMENT OF CIVIL PENALTIES to CSXT on March 29, 1990, which was received 
by Petitioner on April 27, 1990, assessing the Petitioner civil penalties and investigation costs totaling 
$17,350.00 for vairious alleged violations of the SPCA. 

G. CSXT timely filed a Petition for a Contested Case Hearing on June 25, 1990, initiating the 
above-referenced contested case. 

H. CSXT filed a Prehearing Statement dated July 27, 1990 in which Petitioner contended, inter 

alia , that the definition of "land-disturbing activity" contained in N.C.G.S. § 113A-52 (6) did not apply to 
railroad right-of-way maintenance activities. 

I. On February 1 , 1991 , CSXT filed a Motion for Summary Judgment averring that no genuine 

issue as to any material fact existed and Petitioner was entitled to judgment as a matter of law because, inter 
alia , the SPCA does not apply to railroad right-of-way maintenance activities. In support of its motion, 
Petitioner contended that such activities are not a "land-disturbing activity" within the meaning of N.C.G.S. 
§ 113A-52 (6) and that the SPCA is preempted by the FRSA. On the same date. Respondent filed a Motion 
for Summary Judgment averring no disputed issue as to any material fact existed and that railroad right-of-way 
maintenance activities are a land-disturbing activity as defined in the SPCA. A hearing was held on the 
Motions on February 22, 1991. 

J. By order dated March 8, 1991, Judge Julian Mann, III denied both Motions, stating that he 

could not conclude as a matter of law that CSXT was not engaged in "road maintenance" activities as defined 
in N.C.G.S. § 113A-52 (6) or was not otherwise engaged in "land-disturbing" activity, and concluding that 
there were material issues of fact in contention between the parties. 

K. Railroads are required to perform specific maintenance activities in order to comply with 

Federal Railroad Administration ("FRA") rules promulgated under the FRSA. (Griffin Tr. p. 31). The FRA 
rules are broad, regulating all aspects of track and roadbed safety, including track geometry, rail defect, 
fasteners, track structure, drainage, and everything else that relates to roadbed and track structure. (Griffin 
Tr. p. 32). The FRA rules are reprinted in a small booklet called Track Safety Standards , which is used by 
railroad field personnel as the railroad safety "bible." (Ex. No. 9; Griffin Tr. p. 32). Included as Appendix 



1134 7:11 NORTH CAROLINA REGISTER September 1, 1992 



CONTESTED CASE DECISIONS 



"C" of the booklet is a list of "Defect Codes," which are referenced by FRA inspectors when citations are 
issued. (Ex. No. 9, p. 40; Griffin Tr. p. 34). 

L. The FRA has specific requirements concerning vegetation (Ex. No. 9, pp. 13-14; Griffin Tr. 

p. 36). FRA Rule 40 CFR 213.37 requires that vegetation on or immediately adjacent to roadbeds be 
controlled for safety reasons. (Ex No. 7; Griffin Tr. p. 47). For example, the FRA requires that brush and 
weeds be kept free from the walking area so a train man can safely "walk the train" to check for problems 
at night. (Griffin Tr. pp. 39-40). FRA rules also restrict vegetation in the walkway around switches, any 
vegetation that would obstruct railroad signs and signals, and any vegetation that could pose a fire hazard to 
track-carrying structures. (Ex. No. 9, pp. 13-14; Griffin Tr. p. 36). 

M. No specific distance is set out in FRA rules to define "the area immediately adjacent" to the 

roadbed (Ex. No. 9, p. 13). The area between the track structure and the back side of the drainage ditch 
running parallel to the track is considered "immediately adjacent" in all cases. (Ex. No. 7; Griffin Tr. p. 48). 
Where it is necessary to keep vegetation from obstructing safety equipment such as a signal or whistle post 
located on a curve, the area "immediately adjacent" to the roadbed can include a greater distance. (Griffin 
Tr. pp. 48-51) For FRA purposes, any area within the right-of-way is "immediately adjacent" if signals or 
other safety equipment are obstructed from view. (Griffin Tr. pp. 48-51). 

N. FRA Rule 40 CFR 213.33 requires railroads to maintain the drainage and other water- 

carrying facilities under or immediately adjacent to the roadbed. (Ex. No. 9, p. 13). For example, railroads 
must keep ditches clear of obstructions and vegetation to ensure the free flow of water away from the roadbed. 
(Ex. No. 9, p. 13; Griffin Tr. pp. 57-59). A typical problem can be debris, appliances, roofing shingles and 
other wastes dumped by others on railroad property. (Griffin Tr. pp. 75-76). Such obstructions are normally 
removed by use of ditch-clearing machinery such as a Gradall or Jordan spreader. Vegetation is also cleared 
from ditches in the same manner. (Griffin Tr. pp. 38, 39, 44). 

O. FRA rules also specify in Defect Code 33.05 that water-carrying facilities, such as pipes, 

culverts, and drainage ditches alongside tracks, shall not be obstructed by silting which could obstruct the flow 
of water away from the tracks and roadbed. (Ex. No. 9, p. 42; Griffin Tr. p. 59). The FRA Defect Code 
uses the term "silting" whereas the SPCA rules use the essentially synonymous term "sediment." (Ex. No. 
9, p. 42; Griffin Tr. p. 60). 

P. Railroads are subject to substantial federal penalties if they fail to comply with FRA safety 

requirements (Ex. No. 9, pp. 37-39; Griffin Tr. pp. 65-66). For serious problems, an FRA inspector may 
issue a Code 1 citation, which requires either suspension of operation or immediate compliance. For Code 
2 violations, the railroad has 30 days in which to comply. (Griffin Tr. pp. 64-65). Failure to comply can 
result in an immediate shutdown of operations or civil penalties of, for example, $2,500.00 per violation for 
drainage problems and $1,000.00 per violation for vegetation problems. (Ex. No. 9, p. 37; Griffin Tr. p. 
66). 

Q. Railroads presently have no effective way to control vegetation except by use of rail-mounted 

equipment. (Ex. No. 7; Griffin Tr. pp. 69, 77-78). An estimated 98% of railroad rights-of-way are 
maintained by such rail-mounted equipment as Jordan spreaders and Gradalls. (Griffin Tr. p. 78). Unlike 
the Department of Transportation, railroads generally do not have conditions where use of tractor mowers is 
practical (e.g., gentler slopes) (Ex. No. 4; Griffin Tr. p. 75). Because of these limitations, it would be 
difficult for railroads to maintain areas where vegetation is required to be planted to meet SPCA requirements. 
(Griffin Tr. pp. 70-71). Reseeding areas alongside tracks pursuant to SPCA requirements could negate the 
remedial work just performed pursuant to FRA requirements. (Griffin Tr. p. 74). 

R. Railroads are also constrained by the narrow width of their rights-of-way in many places. 

Railroad rights-of-way were established in many areas in the late 18(X)s (Griffin Tr. p. 52). An estimated 



7:11 NORTH CAROLINA REGISTER September 1, 1992 1135 



CONTESTED CASE DECISIONS 



99% of railroad rights-of-way have been in place for decades. (Griffin Tr. pp. 53, 70). Such rights-of-way 
can vary greatly in width from one location to another. (Griffin Tr. pp. 41-42). Consequently, it would be 
impractical for railroads to meet the 25-foot buffer zone requirement of § 113A-57 (1) of the SPCA in many 
places. (Griffin Tr. pp. 54-56). Furthermore, it would be impractical and prohibitively expensive to acquire 
additional rights-of-way. (Griffin Tr. p. 138). 

S. With respect to routine maintenance, substantial practical problems exist for railroads to 

comply with the vegetation, slope, buffer zone, plan submittal and other SPCA requirements. (Griffin Tr. 
pp. 73-76). For example, establishment of vegetative ground cover would accelerate vegetative obstruction 
of drainage features and safety signals, be difficult to mow because of a lack of tractor mowers, and conflict 
with the FRA requirement to keep ditches free from debris. Other forms of ground cover (e.g., aggregate- 
lining or paving) would be economically infeasible, considering the many miles of railroad right-of-way. 
(Griffin Tr. pp. 140-141). Also, the narrow rights-of-way in some places pose practical limitations on a 
railroad's ability to cut back steeper slopes. (Ex. Nos. 5, 6; Griffin Tr. pp. 75, 89). Finally, scheduling 
problems caused by interruptions in scheduled maintenance projects to respond to FRA citations and by 
CSXT's commitment to assist short-line railroads on short notice with their urgent maintenance problems 
would make compliance with the SPCA's erosion control requirement difficult even for routine maintenance. 
(Griffin Tr. pp. 72-73). 

T. During emergencies, such as washouts and derailments, a railroad's primary objective is to 

reopen the track. (Griffin Tr. p. 79). Emergency repairs frequently require clearance of access to the scene, 
cleanup of chemical or commodity spills, removal of damaged rail cars, and repair of track and roadbed 
structures. Frequently such emergency activities involve disturbance of more than one (1) acre of natural 
cover or topography. (Griffin Tr. p. 83). Complying with the SPCA requirement to prepare an erosion 
control plan and await approval by Respondent before proceeding with emergency repairs would seriously 
disrupt railroad operations and impede the free flow of goods in interstate commerce. (Griffin Tr. pp. 85-86). 
Lengthy interruptions in service due to SPCA requirements could result in plant shutdowns by railroad 
customers, causing a serious disruption of interstate commerce. (Griffin Tr. pp. 80-81). The SPCA contains 
no provision for exempting emergency repairs of any kind. (Griffin Tr. p. 87). 

U. Based on the uncontro verted evidence presented at the hearing held on April 15, 1992 before 

the undersigned, substantial actual conflicts exist between the SPCA and FRSA with respect to railroad right- 
of-way maintenance activities. 

CONCLUSIONS OF LAW 

A. Pursuant to N.C.G.S. § 150B-33, undersigned is of the opinion that an administrative law 
judge may not have the authority to declare a state law unconstitutional. Accordingly, it is unclear whether 
the undersigned has authority and jurisdiction to rule on Petitioner's contention that the SPCA violates the 
Commerce Clause of the U.S. Constitution by imposing an undue burden on interstate commerce. Likewise, 
it is unclear whether the undersigned has authority and jurisdiction to rule on Petitioner's contention that the 
SPCA is preempted by the FRSA with respect to railroad maintenance and, thus, violates the Supremacy 
Clause of the U.S. Constitution. 

B. Pursuant to N.C.G.S. § 150B-3 3, the undersigned is of the opinion that an administrative law 
judge does have authority and jurisdiction to consider evidence and arguments presented at the hearing on the 
Federal Preemption Issue in interpreting the provisions of the SPCA. 

C. Judge Mann's order dated March 8, 1991 left open the issue of whether railroad right-of-way 
maintenance activities fall within the scope of the term "road maintenance" found in N.C.G.S. § 113A-52(6), 
pending further hearing on the matter. 

D. The SPCA and FRSA clearly address the same subject matter, such subject matter being 
"railroad right-of-way maintenance activities. " Speciflcally, the SPCA and FRSA both address, inter alia, the 
subjects of drainage and vegetation within railroad rights-of-way. 



U36 7:11 NORTH CAROLINA REGISTER September 1, 1992 



CONTESTED CASE DECISIONS 



E. The SPCA applies statewide and is not limited in its coverage to the area outside "the area 
immediately adjacent to the roadbed." Accordingly, the SPCA purports to apply to the same area as the 
FRSA with respect to railroad rights-of-way. Therefore, the geographic coverage of the SPCA and FRSA 
overlap. 

F. If required to comply with the SPCA, the ability of Petitioner to respond to emergencies such 
as derailments and washouts would be seriously impaired due to the lack of any exemption in the SPCA and 
implementing rules for railroad maintenance activities or emergency repairs. 

G. CSXT cannot comply with both the SPCA and FRSA for many routine and emergency 
maintenance and repair activities. Furthermore, the requirement for advance approval of an erosion control 
plan conflicts with CSXT's ability to respond to FRA citations in a timely fashion. Therefore, as a matter 
of law, the SPCA substantially conflicts with the FRSA with respect to railroad maintenance activities. 

H. If this case were heard in a court of competent jurisdiction with respect to the Federal 

Preemption Issue, it is the conclusion of the undersigned that such a court would hold that the SPCA is 
preempted by the provisions of the FRSA with respect to railroad maintenance activities. 

I. In light of the uncontroverted evidence presented at the hearing on April 15, 1992, the 

undersigned has concluded that the term "road maintenance" does not include railroad right-of-way 
maintenance activities. To conclude otherwise would present significant preemption problems under the SPCA 
and result in substantial conflicts for Petitioner and other railroad companies operating in North Carolina in 
attempting to comply with both the SPCA and FRSA. 

J. Because "land-disturbing" activity as defined in N.C.G.S. § 1 13A-52 (6) does not encompass 

railroad right-of-way maintenance activities, the Division of Land Resources exceeded its authority or 
jurisdiction, acted erroneously, acted arbitrarily or capriciously, and failed to act as required by law in 
assessing the subject civil penalty plus investigation costs. 

RECOMMENDED DECISION 

Based on the foregoing findings of fact and conclusions of law, it is recommended that the Secretary 
of the North Carolina Department of Environment, Health and Natural Resources rescind Respondent's 
assessment of a $17,350.00 civil penalty, including investigative costs, under the SPCA against Petitioner in 
this matter.^ 

It is further recommended that the Division of Land Resources refrain from initiating any further 
enforcement action against CSXT for any alleged violations of the SPCA at the site occurring after March 6, 
1990.^ 

ORDER 

It is hereby ordered that the Respondent serve a copy of the Final Decision on the Office of 
Administrative Hearings, P.O. Drawer 27447, Raleigh, North Carolina 27611-7447, in accordance with 
N.C.G.S. § 150B-36(b). 

NOTICE 

The agency making the final decision in this contested case is required to give each party an 
opportunity to file exceptions to this recommended decision and to present written arguments to those in the 
agency who will make the final decision. N.C.G.S. § 150B-36(a). 



^See pp. 6-7 of FINDINGS AND DECISION AND ASSESSMENT OF CIVIL PENALTIES dated March 
29, 1990. 

7:11 NORTH CAROLINA REGISTER September 1, 1992 1137 



CONTESTED CASE DECISIONS 



The agency is required by N.C.G.S. § 150B-36(b) to serve a copy of the final decision on all parties 
and to furnish a copy to the parties' attorney of record and to the Office of Administrative Hearings. 

The agency that will make the final decision in this contested case is the North Carolina Department 
of Environment, Health and Natural Resources. 



This the 17th day of July, 1992. 



Robert Roosevelt Reilly, Jr. 
Administrative Law Judge 



1138 7:11 NORTH CAROLINA REGISTER September 1, 1992 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 



COUNTY OF BUNCOMBE 



IN THE OFFICE OF 
ADMINISTRATIVE HEARINGS 
91 OSP 0729 



KENNETH HELMS, 
Petitioner, 



NORTH CAROLINA DEPARTMENT 
OF HUMAN RESOURCES, 
Respondent. 



RECOMMENDED DECISION 



This contested case came on to be heard before Sammie Chess, Jr., Administrative Law Judge, Office 
of Administrative Hearings, on February 24, 1992, on a petition filed by Petitioner on August 5, 1991, 
pursuant to North Carolina General Statute Section 150B-23(a). The Petitioner seeks review of the decision 
of the Respondent's Hearing Officer, William H. Guy, dated July 10, 1991, affirming the Petitioner's 
dismissal from his position of employment as a Health Care Technician I at the Alcohol and Drug Abuse 
Treatment Center, Black Mountain, North Carolina. 



FOR PETITIONER: 



FOR RESPONDENT: 



APPEARANCES 

John A. Dusenbury, Jr. 
Attorney at Law 

David Parker, Deputy 
Assistant Attorney General 

Kathleen U. Baldwin, 
Associate Attorney General 

Having heard and considered the testimony and exhibits offered into evidence by Petitioner and the 
Respondent, and the arguments and contentions of counsel for both parties, the undersigned makes the 
following: 

FINDINGS OF FACT 

1. The Petitioner was employed by the Alcohol and Drug Abuse Treatment Center, Black 
Mountain, North Carolina, from April 1, 1986 until April 17, 1991, as a Health Care Technician I. 

2. During the period from April 1, 1986, until April 17, 1991, the Respondent agency provided 
inpatient rehabilitative therapy and counselling to persons suffering from addiction to alcohol and other 
controlled substances. 

3. The Petitioner's duties as a Health Care Technician I included monitoring the activities and 
behavior of clients at the Respondent agency, enforcing rules and regulations of the Respondent agency, 
assisting clients from time to time and recording information concerning clients in client charts. 

On October 17, 1990, Molly C. was admitted to the Respondent agency. She remained at 



7:11 NORTH CAROLINA REGISTER September 1, 1992 



1139 



CONTESTED CASE DECISIONS 



the agency until November 14, 1990, when she was discharged. 

5. During the time that Molly C. was a client at the Respondent Center she lived in the women's 
dormitory. 

6. During the time that Molly C. was a client at the Center the Petitioner's primary work 
assignment was the men's dormitory numbers 3, 4, 5. From time to time the Petitioner was assigned duties 
in other areas in the Center including the women's dormitory. 

7. Prior to Molly C.'s discharge from the Center she was asked on two (2) different occasions 
by Cheryl Rutherford if she had had sexual intercourse with the Petitioner at the Center. On both occasions 
Molly C. denied any acts of sexual intercourse between her and the Petitioner. 

8. In January of 1991, Cheryl Rutherford and two (2) other employees from the Respondent 
Center again interviewed Molly C. concerning allegations of sexual intercourse between Molly and the 
Petitioner during Molly C.'s stay at the Center. On this occasion Molly C. stated that she had, in fact, had 
sexual intercourse with the Petitioner on a weekend in November of 1990. 

9. Prior to the hearing in this case the deposition of Molly C. was taken upon oral examination 
by counsel for the Petitioner. During her deposition testimony Molly C. testified that the alleged act of sexual 
intercourse between her and the Petitioner occurred two (2) weekends prior to her discharge from the Center 
on Wednesday, November 14, 1990. 

10. During the hearing, Molly C. testified that the alleged act of sexual intercourse between her 
and the Petitioner occurred at approximately 8:30 p.m. in the evening during the weekend of November 9, 
1990, through November 11, 1990, while the Petitioner was on duty. 

1 1 . The Petitioner, testified and presented uncontradicted documentary evidence that he did not 
work at the Center on either Saturday, November 10, 1990, nor November 11, 1990, which was the weekend 
immediately before her release. 

12. The Petitioner and the Petitioner's wife also testified, without contradiction, that the 
Petitioner's wife's birthday was on the 9th of November, and that on November 9, 1990, the Petitioner was 
present at a birthday party for his wife at their home at approximately 7:00 p.m. and lasting a considerable 
time beyond the beginning of the time of the alleged occurrence. 

13. The Petitioner and then Nursing Supervisor (second shift) at the Respondent agency, Darlene 
Wilkins, testified that on November 9, 1990, the Petitioner requested permission from Wilkins to leave work 
early so that he could attend a birthday party scheduled for later that evening for his wife, and that Wilkins 
granted the Petitioner permission to leave work early that evening. 

14. Copies of Petitioner's time records for Friday, November 9, 1990, indicate that the Petitioner 
left work early that evening. 

15. On or about November 19, 1990, the Petitioner was informed by his supervisor, Marcia 
Floyd, that an investigation of the facts and circumstances surrounding the allegations of sexual intercourse 
between the Petitioner and Molly C. had disclosed no evidence to substantiate the allegations. 

16. During the period from November of 1990 through March of 1991 an official of the 
Respondent agency had further discussions with the Petitioner concerning the facts and circumstances 
surrounding allegations of sexual intercourse with Molly C. 

17. On or about March 10, 1991, the Petitioner was summarily suspended from his position on 
the basis of allegations involving Molly C. 



1140 7:11 NORTH CAROLINA REGISTER September 1, 1992 



CONTESTED CASE DECISIONS 



18. During the conference prior to the Petitioner's suspension on March 10, 1991, he was not 
informed of the date on which the alleged act of intercourse with Molly C. was supposed to have taken place. 

19. The Petitioner remained on suspension from March 12, 1991 until April 17, 1991. 

20. On April 17, 1991, the Petitioner was summoned to the office of Mr. William Rafter, the 
Director of the Respondent agency. 

21. Prior to the meeting on April 17, 1991, the Petitioner had not been informed by any agent 
or employee of the Respondent of the date on which the alleged act of intercourse involving Molly C. was 
supposed to have occurred. 

22. Prior to the April 17, 1991 meeting, the Petitioner was not informed that the nature of the 
meeting was that of a predismissal conference. 

23. The Petitioner was summarily dismissed from his position during the conference on April 17, 
1991. 

24. Molly C. was and continued to be in love with Petitioner in April 1991. 

25. Molly C. testified in April 1991, that her counselor, Cheryl Rutherford, told her that 
Petitioner was having affairs with other women at the Center, and that there had been other women in the past 
and would probably be more in the future. It was after that meeting in April 1991 with Ceryl Rutherford and 
others from the Center, that Molly C. made her first allegation of sexual intercourse and signed a statement 
alleging that Petitioner had sex with her while she was at the Center being treated. 

26. Molly C. said the counselors told her that Petitioner was separated from his wife and had free 
run of all the women at the Center. 

27. Molly C. testified that she was a serious alcohol and drug abuser, that was what caused her 
to be at the Center. Molly C. has served active sentences in several counties and had done felony time in 
Women's Prison in Raleigh, North Carolina. 

28. According to Molly C. there were plenty of witnesses to the undue attention she was receiving 
from Petitioner, and she gave their names to Respondent. 

29. There was not one witness presented to corroborate Molly C.'s testimony regarding the 
alleged single act of sexual intercourse with Petitioner. 

30. There were major contradictions between the testimony of Molly C. and other witnesses for 
Respondent in that the witnesses deny saying things Molly C. attributed to them. 

31. That these accusations are very, very serious and ought to be dealt with severely if proven 
by a preponderance of the evidence, the burden of proof being on the Respondent. 

32. The Petitioner denies having engaged in an act of sexual intercourse with Molly C. 

Based upon the foregoing Findings of Facts, the undersigned Administrative Law Judge makes the 
following: 

CONCLUSIONS OF LAW 

1 . The agency has jurisdiction of the parties and of the subject matter of this proceeding. 

2. At the time of his dismissal on April 17, 1991, the Petitioner was a permanent employee of 



7:11 NORTH CAROLINA REGISTER September 1, 1992 n41 



CONTESTED CASE DECISIONS 



the State of North Carolina and thus entitled to due process of law in proceedings affecting his interest in his 
continued employment. 

3. The Respondent's decision to terminate the Petitioner's employment on April 17, 1991, on 
the basis of alleged sexual intercourse between Petitioner and Molly C. during the month of November 1990, 
was not supported by substantial evidence. 

4. The Respondent has failed to establish by a clear preponderance of the evidence that there 
was sufficient evidence tending to establish with reasonable certainty that the Petitioner committed the acts 
of sexual intercourse with Molly C. as alleged as the basis for his dismissal. 

5. The Respondent failed to give the Petitioner adequate notice prior to his suspension on March 
10, 1991, of the nature of the proceeding so as to enable the Petitioner to prepare a meaningful defense to the 
allegations against him. 

6. The Respondent failed to give the Petitioner sufficient advance notice of his predismissal 
conference on April 17, 1991, to enable the Petitioner to prepare an adequate defense to the charges against 
him. 

7. The failure of the Respondent to give the Petitioner adequate notice of the proceedings at 
which the Petitioner's interest in his employment were adversely affected deprived the Petitioner of due 
process of law in his suspension and dismissal from employment with the Respondent agency. 

RECOMMENDATION 

The undersigned Administrative Law Judge makes the following recommendations: 

1 . That Petitioner be immediately reinstated to his position as a Health Care Technician I with 
the Respondent agency, and that the Petitioner receive back pay and benefits from April 17, 1991 until the 
present; 

2. That the Respondent pay to the Petitioner's attorney reasonable attorney's fees; 

3. That the allegation which formed the basis of the Respondent's action against the Petitioner 
in this instance, and all references thereto, be expunged from the Petitioner's personnel file; 

4. That the costs of this action be taxed to the Respondent. 

ORDER 

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative 
Hearings, P.O. Drawer 27447, Raleigh, North Carolina, 27611-7447, in accordance with North Carolina 
General Statute Section 150B-36(b). 

NOTICE 

The agency making the final decision in this contested case is required to give each party an 
opportunity to file exceptions to this recommended decision and to present written arguments to those in the 
agency who will make the final decision. G.S. 150B-36(a). 

The agency is required by G.S. 150B-36(b) to serve a copy of the final decision on all parties and to 
furnish a copy to the parties' attorney of record and to the Office of Administrative Hearings . 

The agency that will make the final decision in this contested case is the State Personnel Commission. 



1142 7:11 NORTH CAROLINA REGISTER September 1, 1992 



CONTESTED CASE DECISIONS 



This the 15 day of July, 1992. 



Sammie Chess, Jr. 
Administrative Law Judge 



7:11 NORTH CAROLINA REGISTER September 1, 1992 n43 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 



COUNTY OF BRUNSWICK 



IN THE OFFICE OF 
ADMINISTRATIVE HEARINGS 
91 OSP 0804 



A BABSON, 



Petitioner, 



V. 



BRUNSWICK COUNTY HEALTH 
DEPARTMENT, 

Respondent. 



RECOMMENDED DECISION 



This matter was heard before Beecher R. Gray, administrative law judge, on March 30-31, 1992 in 
Bolivia, North Carolina. As a preliminary matter, Respondent's pending motion for summary judgment was 
denied. 

Respondent had the burden of proof in this case as to whether it had just cause to terminate the 
employment of Petitioner. Respondent accordingly put on its evidence first. During the presentation of 
Respondent's evidence. Petitioner obtained an agreement from Respondent that Petitioner could call two 
present or former Brunswick County Commissioners during the presentation of Respondent's evidence for the 
sake of convenience of those witnesses. 

Upon Respondent's completion of its evidence and resting of its case in chief, Petitioner moved to 
dismiss the charges against her on the grounds that Respondent had failed to produce sufficient evidence as 
a matter of law. Respondent moved that Petitioner's motion to dismiss be considered improper because she 
had already begun to put on her evidence by virtue of the two witnesses called out of order for convenience. 
Respondent's motion was denied. 

Petitioner's motion to dismiss the several allegations against her for insufficiency of the evidence was 
denied in part and allowed in part as follows: 

1. April 30, 1990 warning for failure in performance of duties by using a county vehicle for 
personal business on county time: ALLOWED; 

2. September 11, 1990 warning for failure in performance of duties by violating the Brunswick 
County Board of Health Animal Control After Hours Call Policy: ALLOWED; 

3. April 15, 1991 warning for failure in performance of duties by not completing quality 
assurance work directives issued on January 31, 1991 for the month of February, 1991: 
DENIED; and 

4. June 11, 1991 warning for failure in performance of duties by 

a. discourtesy to employees by use of profanity: DENIED; 

b. intimidation of employees by stating that they were being watched: ALLOWED; 
and 



c. 



failure to respond to two (2) service calls within a reasonable time: ALLOWED. 



Following announcement of the above rulings on the record during the course of the hearing, 
Petitioner elected to produce no further evidence. 



1144 



7:11 NORTH CAROLINA REGISTER September 1, 1992 



CONTESTED CASE DECISIONS 



APPEARANCES 



Petitioner: Sheila K. McLamb, Esq. 
Respondent: Guy F. Driver, Jr., Esq. 



ISSUE 



Whether Respondent's dismissal of Petitioner from its employment on grounds of poor job 
performance is proper. 

FINDINGS OF FACT 

1 . The parties received notices of hearing by certified mail fifteen or more days prior to the hearing and 
so stipulated. 

2. At the time of her dismissal on June 25, 1991, Petitioner was employed as Respondent's Animal 
Control Supervisor, a position she had occupied for more than six (6) years. As Animal Control 
Supervisor, Petitioner supervised five subordinates. 

3. All of Petitioner's performance evaluations during her work with Respondent reflect average or above 
average performance. The last evaluation Petitioner received was accomplished in September, 1988. 
Petitioner was not given performance evaluations for 1989 and 1990, even though Respondent's 
applicable personnel system required that performance evaluations be done annually. 

4. On April 24, 1990, Petitioner was enroute to an animal control visit to a home in the town of Ash 
in Brunswick County when she stopped at the Waccamaw Baseball Park to meet Respondent's 
sanitarian Sonja Remington. The Waccamaw Baseball Park is on the route from the Animal Control 
Shelter to Ash. The purpose of the meeting at Waccamaw Park was for Petitioner to unlock the 
concession stand and have Sanitarian Remington inspect it so that it could be used for a baseball game 
occurring that night. Petitioner was involved in little league baseball and had a key to the concession 
stand. On April 24, 1990, Health Director Michael Rhodes accompanied Sonja Remington to 
Waccamaw Park when she went there to inspect the concession stand. Health Director Rhodes was 
making a routine visit with Sanitarian Remington on that day. 

5. Health Director Rhodes and Sanitarian Remington left the Health Department at about 10:00 a.m., 
arriving at the park around 10:30-10:45 a.m. Upon arriving at Waccamaw Park, Health Director 
Rhodes observed Petitioner there in uniform driving a county animal control vehicle. Health Director 
Rhodes was with Sanitarian Remington and Petitioner while the concession stand inspection was 
conducted, a period of 30-45 minutes. Health Director Rhodes did not ask Petitioner what she was 
doing at the park or whether she was on duty or off duty. Upon returning to the Health Department, 
Health Director Rhodes reported to Petitioner's supervisor, John Crowder, that Petitioner was at the 
park using a county vehicle for personal business and on county time. Health Director Rhodes 
required that Petitioner take 30 minutes of annual leave for the time she spent at Waccamaw Park on 
April 24, 1990. 

6. When confronted with the charges of misusing a county vehicle and misusing county time. Petitioner 
informed Supervisor John Crowder that she had stopped enroute to an animal control visit in Ash 
and had elected to take her lunch break early in order to assist Sanitarian Remington in getting the 
concession stand inspected for use that night. At the time of this occurrence on April 30, 1990, there 
were no guidelines applicable to Brunswick County Health Department employees as to when or 
where lunch breaks could be taken. 

7. On April 30, 1990, Supervisor John Crowder gave Petitioner an oral warning, documented by a 
memo of the same date, for failure in the performance of duties. Supervisor Crowder found that 
Petitioner had violated Article VII, Section 8(b) of the Brunswick County Personnel Manual by 



7:11 NORTH CAROLINA REGISTER September 1, 1992 n45 



CONTESTED CASE DECISIONS 



improper use of county property and had violated Article VII, Section 8(e) of the Manual by being 
absent without approved leave. Supervisor Crowder further instructed Petitioner that she henceforth 
would be required to obtain his prior approval for the use of personal time to conduct personal 
business. 

8. On or about September 1, 1990, Petitioner received an after-hours service call regarding an injured 
animal in or along highway 17 near Supply, North Carolina. Petitioner sought approval for an after- 
hours service call by attempting to contact Supervisor John Crowder, Health Director Rhodes, Board 
of Health Chairman Ricky Parker, and Interim County Manager and County Attorney David Clegg. 
Being unsuccessful in these attempts to get approval. Petitioner contacted County Commissioner 
Benny Ludlum, in whose district the injured dog was located. Commissioner Ludlum instructed 
Petitioner to respond to the service call, which she did. 

9. On September 4, 1990, Supervisor John Crowder issued a written second warning regarding 
Petitioner's performance of duties on the grounds that she violated Board of Health policy embodied 
in a May, 1988 policy statement enacted by the Board of Health when she made or caused to be made 
an after hours animal control visit to Highway 17 near Supply without the approval of himself or 
Health Director Rhodes. The May, 1988 Board of Health policy for after hours animal control calls 
provides, in pertinent part: 

1 . FIRST PUBLIC HEALTH PRIORFTY (EMERGENCY 
SERVICE CALL) 

The following service will be handled on a 24 hour basis seven days a 
week. 

A. Animal bites on humans 

B. Other investigations relating to rabies by the direction of the Local 
or State Health Director or Head of the Environmental Epidemio- 
logical Services Branch of the Division of Health Services. 

10. Supervisor Crowder's written warning of September 11, 1990 contained the following statements 
regarding her attempts to get approval for the after hours animal control call and finally making the 
call upon instructions to do so by County Commissioner Ludlum: 

This procedure does not constitute following Board of Health policy regarding 
response to calls after hours. 

You have called on similar situations regarding after hours emergency calls response 
in the past and I have denied permission due to the fact that on May 9, 1988, the 
Brunswick County Board of Health adopted a policy which revised after hour 
emergency calls (see attached). There have been response calls in the past approved 
after hours, but only with Sheriffs Department request and "Life threatening" 
situations. 

This injured dog incident of September 1, 1990 did not constitute a "life threatening" 
situation. 

11. Supervisor Crowder admits to having told Petitioner at some time prior to September 1, 1990 that 
"we would be hard pressed to refuse an after hours animal control call from a county commissioner." 
Supervisor Crowder contends that he meant that he or Health Director Rhodes would be hard pressed 
to refuse permission to Petitioner to make such a call. Petitioner interpreted this statement as some 
license to make an after hours animal control call if requested to do so by a county commissioner. 
On September 1, 1990 Petitioner held a reasonable, good faith belief that if she could not obtain 
permission from Supervisor Crowder, Health Director Rhodes, Board of Health Chairman Parker, 
or County Manager/County Attorney Clegg, that it was proper to make the after hours call to Supply 



1146 7:11 NORTH CAROLINA REGISTER September 1, 1992 



CONTESTED CASE DECISIONS 



if approved or requested by a county commissioner. 

12. On January 31, 1991, Supervisor Crowder issued a memorandum to Petitioner entitled: "Follow up 
of January 24, 1991 and January 31, 1991 Discussion Regarding Time Management and Other 
Animal Control Supervisory Quality Control Measures." This memorandum required that Petitioner 
conduct bi-monthly staff conferences with her subordinates in the Animal Control Office and prepare 
minutes at each such staff conference which would be shared with Supervisor Crowder and all animal 
control employees. In addition to bi-monthly staff conferences. Petitioner was directed by this 
memorandum to begin a regular schedule of working with her subordinates on a one to one basis 
according to the following schedule: 

1. animal control officers: bi-monthly visits totalling not less than eight (8) hours each or 16 
hours per month and 

2. animal control clerk: spend not less than 4 hours per week with the animal control clerk and 
not less than 16 hours per month. 

13. During the month of February, 1991, Petitioner spent the following time with the animal control 
officers under her supervision: 

J. Brewer 11.50 hours 

R. Grissette 13.25 hours 

J. Hagler 4.00 hours 

On April 15, 1991 Health Director Rhodes wrote Petitioner a letter entitled: "Failure in 
Performance of Duties 3rd Step. Disciplinary Procedures." Health Director Rhodes cited Petitioner 
under Brunswick County Personnel Manual Article VII, Section 8(a) for failure to perform her duties 
as assigned by Supervisor Crowder in the January 31, 1991 directive regarding time management and 
quality assurance. 

14. Following Supervisor Crowder's issuance of time management and other animal control supervisory 
quality control measures in his letter to Petitioner dated January 31, 1991, Petitioner called a staff 
meeting of all animal control personnel. At that meeting on approximately February 1, 1991, 
Petitioner told her subordinates in animal control that "when shit hits upstream it runs downstream 
and I will see to that. " She also told the staff that what she did or her personal business was "none 
of their damn business." Profanity was routinely used in and around the animal control office by the 
staff, including Petitioner. 

15. On April 30, 1991, all five of Petitioner's subordinates in the animal control office signed a 34 item 
complaint (Respondent's Exhibit 9) against Petitioner and filed it with the Health Director, Michael 
Rhodes. Only items 9, 22, and 29 of Exhibit R-9 were admitted into evidence in this contested case 
hearing. Item 9 is the complaint regarding Petitioner's use of profanity toward the staff during the 
staff meeting of February 1, 1991. 

16. Item 22 of the complaint alleged that Petitioner had stated that employees and their families were 
being watched and that she would sue them. Supervisor John Crowder concluded in a letter of June 
5, 1991 to Health Director Rhodes that at least one (1) employee felt threatened by Petitioner's 
remarks. No evidence was produced during the hearing of this contested case that Petitioner's 
remarks intimidated or threatened any employee. All five of Petitioner's subordinate employees in 
animal control testified during the hearing. 

17. Item 29 of the employee complaint alleged that Petitioner had received two animal control service 
requests, one on June 25, 1990 and the other on September 20, 1990, and had given them to animal 
control officer James Hagler to service on December 20, 1990. The evidence in this contested case 
is that Petitioner turned the June 25, 1990 complaint over to the Shallotte Police Department for 



7:11 NORTH CAROLINA REGISTER September 1, 1992 n47 



CONTESTED CASE DECISIONS 



investigation because it was located within that municipality. The evidence concerning the September 
20, 1990 complaint is that Petitioner personally investigated the complaint. When Officer Hagler 
contacted the complaining citizen, he found that the citizen knew nothing about having a current 
animal control problem or service request pending. 

18. In his June 5, 1991 letter to Health Director Rhodes, Supervisor Crowder concluded that Petitioner 
had violated Article VII, Section 8(d) of the Brunswick County Personnel Manual by being 
discourteous toward her subordinate employees during the February 1, 1991 staff meeting. 
Supervisor Crowder also concluded in this letter that Petitioner had been inefficient and negligent in 
the performance of her duties as a result of her handling of the June 25, 1990 and September 20, 
1990 animal control complaints which she assigned to a subordinate on December 20, 1990 for further 
investigation. 

19. Following the June 5, 1990 letter from Supervisor Crowder, Health Director Rhodes, in a letter dated 
June 11, 1991, placed Petitioner on investigatory/ disciplinary suspension on the basis that the June 
11, 1991 letter constituted a fourth warning. Reiterating the grounds for the first three warnings. 
Health Director Rhodes stated: 

On or about April 30, 1990 you were orally warned regarding the use of a county 
vehicle for personal business. 

On September 11, 1990 you were warned in writing regarding violation of the 
Brunswick County Board of Health Animal Control After Hour Call Policy. On 
April 15, 1991 you received a third step disciplinary procedure letter for failure to 
complete work assignments. On April 30, 1991, staff of the Animal Control 
Program filed a grievance against you. After investigation of this grievance, John 
Crowder, Environmental Health Supervisor, found violations of the Brunswick 
County Personnel Policy, Section 8(a) and (d). 

20. In a letter to Petitioner dated and effective June 25, 1991, Health Director Rhodes terminated her 
employment on the grounds of unacceptable performance of duties as evidenced by the events 
discussed in prior letters to Petitioner dated September 11, 1990, April 15, 1991, and June 11, 1991. 



21. The Brunswick County Personnel Manual, Article VII, Section 8 provides as follows: 

Failure in Performance of Duties 

An employee whose work is unsatisfactory over a period of time shall be notified by 
the supervisor in what way the employee's work is deficient, and what must be done 
if the work is to be satisfactory. 

An employee who is suspended, demoted or dismissed for unsatisfactory perfor- 
mance of duties shall receive at least three warnings before disciplinary action is 
taken. First, one or more oral warnings must be issued by the employee's 
supervisor; second, an oral warning with a follow-up letter to the employee which 
sets forth the points covered in their discussion must be issued by the supervisor; and 
third, a written warning must be issued by the department head serving notice upon 
the employee that corrective action must be taken immediately in order to avoid 
disciplinary actions. The supervisor and the department head must record the dates 
of their discussions with the employee, the performance deficiencies discussed and 
the corrective actions recommended, and must file the information in the employee's 
personnel folder. 

The employee must be allowed at least ten (10) workdays to respond to the charges 



1148 7:11 NORTH CAROLINA REGISTER September 1, 1992 



CONTESTED CASE DECISIONS 



before any determination is made by the department head concerning a suspension 
or a demotion or a determination is made by the appointing authority concerning 
dismissal. 

The following cause relating to failure in the performance of duties are representative 
of those considered to be adequate grounds for suspension, demotion or, dismissal: 

(a) inefficiency, negligence or incompetence in the performance of duties; 

(b) careless, negligent or improper use of county property or equipment; 

(c) physical or mental incapacity to perform duties; 

(d) discourteous treatment of the public or other employees; 

(e) absence without approve leave; 

(f) habitual improper use of leave privileges; and 

(g) habitual pattern of failure to report for duty at the assigned time and place. 

CONCLUSIONS OF LAW 

1. The parties are properly before the Office of Administrative Hearings. 

2. Petitioner failed in the performance of her assigned duties within the meaning of Article VII, Section 
8 of the Brunswick County Personnel Manual when she failed, during the month of February, 1991, 
to accomplish the quality assurance directives given to her by her supervisor, John Crowder, on 
January 31, 1991. 

3. Petitioner failed in the performance of her assigned duties within the meaning of Article VII, Section 
8 of the Brunswick County Personnel Manual when she used profanity during her conduct of a staff 
meeting with her subordinate staff on or about February 1, 1991. Petitioner specifically failed to 
exercise proper supervisory demeanor by using profanity toward her subordinate staff which set the 
tone for the routine use of profanity by the entire staff and made it impossible for Petitioner to 
correct. 

4. Under the terms of the Brunswick County Personnel Manual, Respondent is not entitled to dismiss 
Petitioner based upon the evidence produced in this contested case hearing. Respondent has issued 
two (2) written warnings, supported by the evidence in this case, concerning performance of duties 
to Petitioner. The Brunswick County Personnel Manual Article VII, Section 8 requires that Petitioner 
receive three (3) warnings regarding failure in performance of duties before any disciplinary action 
is taken. 

5. Based upon the evidence produced in this contested case. Respondent's decision to terminate 
Petitioner's employment on June 25, 1991 was erroneous as a matter of law under the Brunswick 
County Personnel Manual and should be reversed. 

6. Petitioner is entitled to reinstatement to her former position or to a comparable position, back pay 
from the date of termination, and reasonable attorney's fees. 

RECOMMENDED DECISION 

Based upon the foregoing findings of fact and conclusions of law it is hereby recommended that 
Respondent's decision to terminate Petitioner's employment effective June 25, 1991 on the grounds of failure 
in the performance of duties under the Brunswick County Personnel Manual Article VII, Section 8 be reversed 
as not supported by the evidence and erroneous as a matter of law. It is further recommended that Petitioner 
be reinstated to the position she held on June 25, 1991; that she receive back pay from that date; that she 
receive reasonable attorney's fees and costs; and that she receive all other benefits to which she would have 
become entitled but for her involuntary separation on June 15, 1991. 



7:11 NORTH CAROLINA REGISTER September 1, 1992 n49 



CONTESTED CASE DECISIONS 



ORDER 

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative 
Hearings, P.O. Drawer 27447, Raleigh, N.C. 2761 1-7447, in accordance with North Carolina General Statute 
150B-36(b). 

NOTICE 

The State Personnel Commission will issue an advisory opinion to the Brunswick County Health 
Department. G.S. 150B-23(a). The agency that will make the final decision in this contested case is the 
Brunswick County Health Department. 

The agency making the final decision in this contested case is required to give each party an 
opportunity to file exceptions to this recommended decision and to present written arguments to those in the 
agency who will make the final decision. G.S. 150B-36(a). 

The agency is required by G.S. 150B-36(b) to serve a copy of the final decision on all parties and to 
furnish a copy to the parties' attorney of record and to the Office of Administrative Hearings. 

This the 14th day August, 1992. 



Beecher R. Gray 
Administrative Law Judge 



1150 7:11 NORTH CAROLINA REGISTER September 1, 1992 



NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM 



2 he North Carolina Administrative Code (NCAC) has four major subdivisions of rules. Two of these, 
titles and chapters, are mandatory. The major subdivision of the NCAC is the title. Each major 
department in the North Carolina executive branch of government has been assigned a title number. 
Titles are further broken down into chapters which shall be numerical in order. The other two, 
subchapters and sections are optional subdivisions to be used by agencies when appropriate. 



TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE 
TITLE DEPARTMENT LICENSING BOARDS CHAPTER 



1 


Administration 


Architecture 


2 


2 


Agriculture 


Auctioneers 


4 


3 


Auditor 


Barber Examiners 


6 


4 


Economic & Community Development 


Certified Public Accountant Examiners 


8 


5 


Correction 


Chiropractic Examiners 


10 


6 


Council of State 


General Contractors 


12 


7 


Cultural Resources 


Cosmetic Art Examiners 


14 


8 


Elections 


Dental Examiners 


16 


9 


Governor 


Dietetics/Nutrition 


17 


10 


Human Resources 


Electrical Contractors 


18 


11 


Insurance 


Electrolysis 


19 


12 


Justice 


Foresters 


20 


13 


Labor 


Geologists 


21 


14A 


Crime Control & Public Safety 


Hearing Aid Dealers and Fitters 


22 


15A 


Environment, Health, and Natural 


Landscape Architects 


26 




Resources 


Landscape Contractors 


28 


16 


Public Education 


Marital and Family Therapy 


31 


17 


Revenue 


Medical Examiners 


32 


18 


Secretary of State 


Midwifery Joint Committee 


33 


19A 


Transportation 


Mortuary Science 


34 


20 


Treasurer 


Nursing 


36 


*21 


Occupational Licensing Boards 


Nursing Home Administrators 


37 


22 


Administrative Procedures 


Occupational Therapists 


38 


23 


Community Colleges 


Opticians 


40 


24 


Independent Agencies 


Optometry 


42 


25 


State Personnel 


Osteopathic Examination & Reg. (Repealed) 


44 


26 


Administrative Hearings 


Pharmacy 


46 






Physical Therapy Examiners 


48 






Plumbing, Heating & Fire Sprinkler Contractors 


50 






Podiatry Examiners 


52 






Practicing Counselors 


53 






Practicing Psychologists 


54 






Professional Engineers & I ^nd Surveyors 


56 






Real Estate Commission 


58 






Refrigeration Examiners 


60 






Sanitarian Examiners 


62 






Social Work 


63 






Speech & language Pathologists & Audiologists 


64 






Veterinary Medical Board 


66 



Note: Title 21 contains the chapters of the various occupational licensing boards. 



7:11 NORTH CAROLINA REGISTER September 1, 1992 



1151 



CUMULATIVE INDEX 



CUMULATIVE INDEX 

(April 1992 - March 1993) 



Pages 



Issue 



1 - 105 1 - April 

106 - 173 2 - April 

174 - 331 3 - May 

332 - 400 4 - May 

401 - 490 5 - June 

491 - 625 6 - June 

626 - 790 7 - July 

791 - 902 8 - July 

903 - 965 9 - August 

966 - 1086 10 - August 

1087 - 1154 11 - September 

ADMINISTRATION 

Auxiliary Services, 4 

Motor Fleet Management Division, 794 

AGRICULTURE 

Gasoline and Oil Inspection Board, 336 
Plant Industry, 904 

Structural Pest Control Committee, 332 
Veterinary Division, 342 

CULTURAL RESOURCES 

U.S.S. Battleship Commission, 911 

ECONOMIC AND COMMUNITY DEVELOPMENT 

Banking Commission, 629 
Community Assistance, 909, 968 
Departmental Rules, 801 

EDUCATION 

Departmental Rules, 1108 

Elementary & Secondary Education, 852, 1 108 

ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 

Coastal Management, 211, 655, 1098 

Departmental Rules, 826 

Environmental Health, 223 

Environmental Management, 190, 416, 500, 644, 830, 1013 

Governor's Waste Management Board, 564, 920 

Health: Epidemiology, 140 

Health Services, 52, 659 

Marine Fisheries, 530 

NPDES Permits Notices, 1, 107 

Radiation Protection, 136 

Sedimentation Control, 920 

Vital Records, 565 

Wildlife Resources Commission, 28, 133, 408, 449, 551, 921 



1152 



7:11 NORTH CAROLINA REGISTER September 1, 1992 



CUMULATIVE INDEX 



Wildlife Resources Commission Proclamation, 176 

FINAL DECISION LETTERS 

Voting Rights Act, 106, 174, 406, 493, 628, 793, 966, 1090 

GOVERNOR/LT. GOVERNOR 

Executive Orders, 401, 491, 626, 791, 903, 1087 

HUMAN RESOURCES 

Aging, Division of, 121, 346 

Day Care Rules, 123 

Economic Opportunity, 5 

Facility Services, 111, 177, 496, 634, 980 

Medical Assistance, 4, 415, 496, 816, 989 

Mental Health, Developmental Disabilities and Substance Abuse Services, 111, 297, 409, 809, 1092 

Social Services Commission, 183, 911 

INDEPENDENT AGENCIES 

Housing Finance Agency, 450, 576, 928 

INSURANCE 

Consumer Services Division, 125 

Departmental Rules, 7, 1095 

Engineering and Building Codes, 19, 643 

Fire and Rescue Services Division, 17 

Hearings Division, 124, 1096 

Life and Health Division, 22, 347 

Property and Casualty Division, 20 

Seniors' Health Insurance Information Program, 132 

JUSTICE 

Alarm Systems Licensing Board, 27, 189, 643, 919 

Criminal Information, 1097 

General Statutes Commission, 353 

Private Protective Services, 918 

Sheriffs Education and Training, 990 

State Bureau of Investigation, 188, 499 

LICENSING BOARDS 

Architecture, 1111 

Certified Public Accountant Examiners, 355 

Cosmetic Art Examiners, 360, 922 

Dietetics/Nutrition, 923 

Electrolysis Examiners, 69, 700 

Nursing, 232, 700 

Professional Engineers and Land Surveyors, 566 

Speech and Language and Pathologists and Audiologists, 705 

LIST OF RULES CODIFIED 

List of Rules Codified, 72, 362, 452, 584 

REVENUE 

License and Excise Tax, 712 
Motor Fuels Tax Division, 361 



7:11 NORTH CAROLINA REGISTER September 1, 1992 U53 



CUMULATIVE INDEX 



STATE PERSONNEL 

Office of State Personnel, 237, 705, 1113 

TAX REVIEW BOARD 

Orders of Tax Review, 494 

TRANSPORTATION 

Highways, Division of, 228, 856, 1110 
Motor Vehicles, Division of, 68, 142 



1154 7:11 NORTH CAROLINA REGISTER September 1, 1992 



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